Opinion
9316
March 7, 1916.
Before WILSON, J., Columbia, April, 1915. Reversed.
Action by Sarah Sternheimer against the Order of United Commercial Travelers of America. From an order requiring plaintiff to file security for costs, she appeals.
Messrs. Elliott Herbert and E.W. Mullins, for appellant, submit: The right to demand security for costs is a personal right, and is waived by delay or the failure of defendant to assert the right promptly: 19 Ency. Pl. and Pr. 362-363; 11 Cyc. 176, et seq.; (Utah) 85 P. 1011; 34 N.J. Eq. 488; 117 App. Div. (N.Y.) 379; 37 Ill. 306; 180 Fed. 624; 2 Rich. 210; 49 S.C. 560. Granting order was abuse of discretion: 88 S.C. 342; 22 App. Div. (N.Y.) 95; 117 Ib. 379. Lack of jurisdiction: Code Civ. Proc. 395; 61 S.C. 1.
Messrs. Melton Belser, for respondent, submit: There is no ground to claim that the right to require security for costs had been waived: Rule C.C. 10; Civ. Code, sec. 1320; 39 S.C. 555; 22 S.C. 304; 31 S.C. 431; 66 S.C. 513; 15 Civ. Proc. N.Y. 237. No abuse of discretion: 19 Enc. P. P. 372; 2 McC. 436 and 454; 13 S.C. 44. Jurisdiction: 13 S.C. 44; 66 S.C. 539. Order not appealable: 2 S.C. 390. Stay: Code Civ. 395; 20 Enc. P. P. 1240; 2 Cyc. 910; 16 S.C. 619; 15 S.C. 10; 61 S.C. 1.
March 7, 1916. The opinion of the Court was delivered by
This is an appeal from an order requiring the plaintiff to file security for costs, on the ground that she is a nonresident. The action was brought on a policy of accident insurance. His Honor, the presiding Judge, directed the jury to find a verdict in favor of the defendant, whereupon the plaintiff gave notice of intention to appeal. Thereafter his Honor, the Circuit Judge, made an order requiring the plaintiff to enter security for costs within 10 days, and that her complaint be dismissed, in case she failed to comply with said order. She, also, gave notice of intention to appeal from the said order.
The first question raised by the exceptions is that the Circuit Court was without jurisdiction to entertain the motion for an order requiring security for costs, after service of notice of intention to appeal from the judgment entered upon the verdict, directed by his Honor, the presiding Judge. The case of Alston v. Limehouse, 61 S.C. 1, 39 S.E. 192, shows that the exception raising this question must be sustained.
Having reached the conclusion that the Circuit Court was without jurisdiction to require security for costs, the merits of the order are not properly before this Court for consideration.
Order reversed.
MESSRS. JUSTICES WATTS, FRASER and GAGE concur in the opinion of the Court.
MR. JUSTICE HYDRICK concurs in the result on the ground that by going to trial on the merits defendant waived the right to require security for costs.