Smith ex rel. Warburton & Rosseter v. Robinson

Opinion by Mr. Justice Trumbull: The defendant moves to dismiss this writ of error, for the reason as shown by affidavit, that Warburton & Rosseter, for whose use it is prosecuted, are not residents of the state, and because no security for costs has been filed. Section 1, ch. 26, R. S., declares, that “in all cases in law or equity, where the plaintiff, or person for whose use the action is to he commenced, shall not he a resident of this state, the plaintiff, or person for whose use the action is to be commenced, shall, before he institutes such suit, file, or cause to he filed, with the Clerk of the Circuit or Supreme Court in which the action is to be commenced,” security for costs; and the second section of the same chapter declares, that “ if any such action shall be commenced without filing such instrument of writing, the Court, on motion, shall dismiss the same.” These provisions of the statute are plain and positive, requiring the Court to dismiss a suit on motion, whenever the plaintiff—or in case the suit is brought in the name of one for the use of another—whenever that other is a non-resident of the state, and fails to file security for costs. The Court has no discretion in the matter, and there is no room for construction, where the terms of a statute are clear and unambiguous. The legislature had an undoubted right to pass the law in question, and it is enough for the Court to know, that thus it is written. It is, however, insisted, that a different construction has been put upon this statute in the case of Catón vs. Harmon, 1 Scam., 581. That case was unlike this. There the objection was, that the nominal plaintiff—not the person for whose use the suit was brought—was a non-resident. A proper construction of the statute, in connection with the decisions that have been made, requires security for costs in all cases, where the real plaintiff is a non-resident; or in case the suit is instituted by one person for the use of another, where the person for whose use the suit is commenced is a non-resident. The statute does not require a non-resident nominal plaintiff, suing for the use of a resident, to file security for costs, and this is all that is decided by the case :of Catón vs. Harmon, but it does require that the person for whose use the action is to he commenced, should, if a nonresident, file security for costs, “before he institutes suit,” thereby treating the person, for whose use the suit is brought, for this purpose, as the real party instituting it. This construction reconciles all the decisions that have been made—Seward vs. Wilson, 1 Scam., 192; Ripley vs. Morris, 2 Gil., 381—and gives force and efficacy to the statute, while a different decision would render wholly nugatory one, of its plainest requirements. The motion to dismiss the writ of error must be allowed. Motion sustained.