Clark v. Bay Circuit Judge

Hooker, J. I am not prepared to say that an order for security for costs, with stay until filed, was not within the discretion of the circuit judge, and that it might not include accrued, as well as prospective, costs. ‘£ The court in which any civil action shall be pending, may, in all cases, when it shall appear reasonable and proper, require the plaintiff to give sufficient security for all such costs as may be awarded against him therein.” 3 Comp. Laws, § 9992. Or that the payment of adjudged costs of a former trial or review may not be required before a second trial is entered upon. The latter practice is plain in New York, from whence our practice comes, and elsewhere. The rule was applied in a habeas corpus proceeding in Ex parte Stone, 3 Cow. (N. Y.) 380, and to a second trial in an ejectment case in Jackson v. Schauber, 4 Wend. (N. Y.) 216. See, also, Griffin v. Round Lake Camp Meet [484] ing Ass’n, 26 Hun (N. Y.), 314; Jackson v. Carpenter, 3 Cow. (N. Y.) 22, and Dresser v. Brooks, 1 Abb. Dec. (N. Y.) 556. The case of Gerrish v. Pratt, 6 Minn. 58, is an authority for the practice followed in this cause. In Felt v. Amidon, 48 Wis. 66, the authority to stay proceedings in the trial court until the costs of a former appeal should be paid was sustained, and it was said that the order was a discretionary one, not subject to review, except possibly for abuse of discretion. See, also, Johnston v. Reiley, 24 Wis. 494; Parmalee v. Wheeler, 32 Wis. 429; Noble v. Strachan, 32 Wis. 314; McLeod v. Bertschy, 30 Wis. 324; In re Will of Kneeland, 40 Wis. 344; Blesch v. Railway Co., 44 Wis. 593, 595; McIntosh v. Hoben, 11 Wis. 400. The subject is considered and discussed at length, and many cases cited, by Philips, J., in Buckles v. Railway Co., 47 Fed. 424, and the practice upheld as one lodged in all courts. This doctrine is announced in the case of Henderson v. Griffin, 5 Pet. (U. S.) 151. See, also, Robinson v. Transportation Co., 16 R. I. 217. I think that the order was not a final order, and that error would not lie for that reason. We must assume that the learned circuit judge exercised his best judgment in the interest of justice, and necessarily his opportunity for knowing the character of the claim in this case is better than ours. V\7e should not say, therefore, that he has abused his discretion. The writ should be denied, with costs. Grant, C. J., and Montgomery and McAlvay, JJ., concurred.