Kelty v. Valle

Henry, J. — On the 23rd of July, 1872, the plaintiff filed her petition in the circuit court asking to be allowed to sue as a poor person, and, on the same day, the court made an order to that effect. On the 27th of July, 1872, she filed her petition in the cause, and on the 18th of October, her amended petition. Afterwards, on the 23rd of January, 1875, at the December term, 1874, of said court, on a motion filed by defendant, alleging that plaintiff had become a non-resident of the State, the court made an order requiring her to file security for costs, within twenty days from the date of said order. At the February term, 1875, and on the 22nd day of February, the court, on motion, ordered said suit dismissed, because plaintiff had failed to file the security for costs required by its order made at the December term. At the April term, 1875, plaintiff filed her motion to set aside said order of dismissal, and reinstate the case, which the court overruled, and plaintiff appealed to the general term, which reversed the judgment, and defendant has appealed to this court. The order permitting the plaintiff to %qe as a poor person was not irrevocable, and that requiring her to give security for [602] costs was, in effect, a revocation of the order allowing her to' sue as a poor person. The Statute, Sec. 2, "Wag., 342, expressly provides that “If, at any time after the commencement of any suit by a resident of the State, he shall become non-resident, &c., the court shall, on motion of the defendant, or any officer of the court, rule the plaintiff, on or before the day in such rule named, to give security for the payment of the costs in such suit, and if such plaintiff shall fail on or before the day in such rule named, to file the undertaking of a responsible person, being a resident of the State, whereby he shall bind himself to pay all costs which have accrued or may accrue in such action, the court may, on motion, dismiss the suit, unless such undertaking shall be filed before the motion is determined.” Here there was no undertaking of any one to be responsible for the costs filed before the motion was determined; nor did plaintiff', when she came and asked the court to set aside the order of dismissal, offer to file any such obligation. It was competent for the court to rule her to give security for costs, and to dismiss the suit, if she failed to comply with that order; and the only ground she relies upon here, is, that there was no formal order setting aside that by which she was allowed to sue as a poor person. This was not such an irregularity as to justify the interference of the appellate courts. There was no abuse of the discretion confided by the law to the circuit court. The authorities cited by respondent fully sustain the position that, if this were such an irregularity as materially affected her interests, her motion to set aside the order of dismissal was not made out of time, but no authority has been cited which would countenance such an interference by this court with thé exercise of its discretion by the circuit court, as is here asked. The ground relied upon to sustain the action of the general term is a mere technicality, and the order requiring the security for costs was so complete a revocation in substance of the order allowing the plaintiff to sue as a poor person, that it would [603] be a perversion of the doctrine of tbe authorities cited, to hold that the absence of a formal revoking order was such an irregularity as to constitute an error for which the judgment of the circuit court dismissing the cause should be reversed. All concurring, the judgment of the general term is reversed. Reversed.