p. 12A. Hinds, the plaintiff, file security for costs, on the ground that he was a non-resident, which order was on appeal affirmed.
The terms of the order were as follows: “ That the plaintiff file security for costs within twenty days after service of the copy of this order, or if an appeal be taken then within twenty days after- the service of an order deciding said appeal, and that all proceedings of the plaintiff herein be stayed until such security be filed and the sureties justify, if excepted to, and that the defendants have $10 costs of this motion.”
Upon an affidavit that more than twenty days had elapsed since service of the order of affirmance upon the appeal, and that no copy of any bond for security for costs had been served on the attorneys for the defendants who had moved for it, and that there was not time to serve notice of motion for the next motion day, and upon the clerk’s certificate that no bond had been filed, the attorneys for all the defendants united in obtaining an order to show cause why the complaint should not be dismissed or judgment of nonpros, entered.
After argument of the motion, an order was granted reciting the order for security and the plaintiff’s failure to comply, and directing “ that the defendants have judgment of non pros, in this action against the plaintiff, with ten dollars costs of the . motion to be taxed with the costs in the action.”
From this order the plaintiff appealed.
Gershom A. Seixas, for appellant.
I. In no case has the court power to dismiss the complaint, under the statute relative to security for costs. The only method provided by the statute . is to stay all plaintiff’s proceedings until security be filed and sureties justify. Sections 4, 5, and 6 of chapter relating to security for costs. Washburn a. Langley, 16 Abbotts’ Pr., 259.)' II. The order was improperly made as to the sheriff, since it nowhere appeared in the motion papers that plaintiff had been required to file security to the sheriff. The practice is well settled that defendant must first obtain an ex parte and alternative order requiring security to be filed within 20 days, or upon failure to show cause, &c. (Caldwell a. Manning, 15 Abbotts' Pr., 271. The opinion in this case expressed that the practice of non pi'os. is retained, is obiter dictum..III. The default was taken at General Term., Nov. 21, 1864.
p. 13The order of nonpros, was granted upon three days’ notice by order to show cause. If the order of non pros, stands, the plaintiff’s remedy against defendant, Kelly, sheriff, is lost by statute of limitations. (§ 92 of Code) The order appealed from should be reversed, if for no other reason than that of the statute not being peremptory. (13 Abbotts' Pr., 473 ; 1 Duer, 705 ; 3 Duer, 613 ). It was a harsh and sudden exercise of discretion, and affects substantial rights of plaintiff’s.A. J. Vanderpoel, for defendant, Kelly.
F. H. Churchill, for the other defendants.
The practice before and since the Code in obtaining security for costs is correctly stated by Justice Barnard, in Caldwell a. Manning, 15 Abbott, 271. He also states correctly the practice before the Code, in case the security was not filed within- a reasonable time after a peremptory order to" file security.
There can be no doubt, I think, as to the power of the court to order judgment of nonpros., in case the security is not filed within a reasonable time after a peremptory order. For the court to do so, is perfectly consistent with the statutory stay of the plaintiff’s proceedings.
That the court exercised this power before the Code, see Champlin a. Petrie, 4 Wend., 209 ; Glover a. Cumming, 12 Wend., 295 .
There is nothing in the Code taking away or affecting this power of the court.
There could be but one bond, and this must be for the benefit of all the defendants. I think the motion was properly made for, and granted as to all of the defendants.
The order should be affirmed with $10 costs.