Opinion
13404
May 9, 1932.
Before GRIMBALL, J., Sumter, November, 1928. Affirmed.
Suit by J.R. McEachern against John Wilson, Mary Wilson and G.A. Lemmon, Trustees of the Estate of Elizabeth Wilson and Mary Wilson, individually. From order dismissing action in event plaintiff failed to pay cost of prior suit within ten days, plaintiff appeals.
The order of the Circuit Judge was as follows:
This matter was argued before me at chambers at Sumter, S. `C., while I was holding Court in the Third Circuit, and I have reserved my decision until this time.
The matter comes up on motion duly noted to dismiss the complaint on the ground that the plaintiff, being a nonresident, and having heretofore been required to give bond for costs, and the complaint having been dismissed on demurrer, and costs having been duly taxed in the sum of $80.10 and the plaintiff and his surety having failed and refused to pay the same, after repeated requests the plaintiff should not be permitted to maintain a second action without paying the costs taxed in the former action.
I am of the opinion that the defendants should be granted relief, but I do not think the complaint should be dismissed outright.
It is therefore ordered and adjudged that, unless the plaintiff pay to Messrs. Epps Levy, defendants' attorneys, the costs heretofore taxed, amounting to $80.10, within ten days from the service of notice of the filing of this order, the complaint in this cause be dismissed.
I base my decision in this matter upon two grounds: First, the provision of Rule 60 of the Circuit Court provided that the costs in the first suit should be paid before the second suit is commenced, and in the second place, as a matter of discretion, I think that a nonresident, who has given security for costs, as in this case, and then refuses to pay the same, that no second action should be permitted until the costs in the first action have been paid. It appears that the second cause of action set forth in the complaint in the present case is the same as the cause of action set forth in the original case. In that case, the plaintiff was required, being a nonresident, to give security for costs. The complaint in that case was dismissed on demurrer, and the dismissal affirmed by the Supreme Court, and it appeared from the uncontradicted affidavit of R.D. Epps, submitted, in the present motion, that, although costs were duly taxed, and although the plaintiff's attorney and his surety were requested to pay these costs, they have failed and refused to do so. It also appears that the surety is now insolvent, with a number of judgments against him, and it would be useless to bring an action or otherwise attempt to collect the costs from any process.
Under these circumstances, I think the Court should exercise its discretion and require the plaintiff to pay the costs heretofore taxed before allowing him, a nonresident, to maintain this action.
Messrs. Epps Levy, for respondents, cite: All proceedings in new action for the same cause shall be suspended until cost of former action paid: 162 S.C. 382; 160 S.E., 881; 154 S.C. 201; 151 S.E., 472; 15 C.J., 305.
May 9, 1932. The opinion of the Court was delivered by
The order of his Honor, Circuit Judge Grimball, appealed from in this case, is satisfactory to this Court. The exceptions thereto are overruled, and the order, which will be reported, is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.