Gifford v. Rising

Beadley, J.: Tbe statute provides that in an action brought by a trustee of an express trust, or a person expressly authorized by statute to sue, tbe court may, in its discretion, require tbe plaintiff to give security for costs. (Code Civ. Pro., § 3271.) The plaintiff is a receiver appointed in proceedings supplementary to execution, and as such comes within tbe classes of persons before mentioned. (Kimberley v. Stewart, 22 How., 281; Bolles v. Duff, 17 Abb., 448.) No time or stage in tbe progress of tbe action, when tbe motion for the order requiring the plaintiff to give such security may be made, is pre scribed by tbe statute, unless it is found in tbe provision that on bis failure to comply witb tbe order tbe defendant is entitled to judgment dismissing tbe complaint upon motion therefor. (Id., § 3277.) And although no dismissal of tbe complaint can be taken in this-action on such default, since judgment to that effect was entered before tbe order was made, we think that provision of tbe statute does not necessarily operate as a hmitation upon tbe power of tbe court to require tbe plaintiff to give security for costs. Tbe penalty thus prescribed is applicable only to those eases where tbe order and default are made prior to judgment, and after that tbe statute provides no rebef for default other than a stay of proceedings in tbe action. And whatever further remedy, if any, tbe defendant may in such case have, must rest in tbe practice of tbe court, wbicb in that respect now requires no consideration. (Dyer v. Dunivan, 3 How., 135.) [130] It is, however, contended with laches, and for that reason their motion should not have been entertained. It is true that such ground, when supported by the fact, furnishes a reason for denial of a motion for security for costs. (Carpenter v. Downing, 6 Hill, 234; Robinson v. Sinclair, 1 Denio, 628; Swan v. Matthews, 3 Duer, 613; Buckley v. Gutta P., etc., Mfg Co., 3 Civ. Pro. R., 428; Fitzsimmons v. Curley, 6 id., 156; Lewis v. Farrell, 14 J. & S., 358.) It is evident that, far as relates to the proceedings and costs in the action prior to the judgment, the defendants were chargeable with laches, which properly denied to them the direction applied for as to such costs. And the effect upon those of the subsequent proceedings would be the same, unless such proceedings can be so distinguished from those preceding the judgment as to permit, in support of the order, the .application of a reason which relieves them from the laches incident to the earlier progress of the action. This can only be done by treating the appeal taken as a new and independent proceeding in it. The appeal, unlike the writ of error of the old practice, is not a new action, but is the commencement of a new proceeding in the .action after its determination by final judgment, and distinct from that which resulted in its recovery. (Enos v. Thomas, 5 How., 366; Lampman v. Hand, 4 Paige, 120, 121; McLaren v. Charrier, 5 id., 530, 534.) The omission of the defendants to move for security early in the progress of the action, did not, therefore, necessarily prejudice their application, as relates to the costs of the appeal made in due season after the appeal was taken, which seems to have been done. The discretion of the court in making the order was justified by the circumstances. The papers tend to show that the .■action was commenced -without having leave of the court, and that the plaintiff, as receiver, has no funds and no prospect of any other than such as may result from this action. That situation may ■properly have been taken into consideration by the court as furnishing some reason for granting the order. (Cumming v. Egerton, 9 Bosw., 684; Meehl v. Schwickhart, 3 W. D., 405.) The order should be affirmed. BARKER, P. J., Haight and Dwight, JJ., concurred. ■Order affirmed with ten dollars costs and disbursements.