announced the opinion of the Court:
It is insisted, that the circuit court erred in proceeding with this cause after the expiration of sixty days from October 16th, 1874, as it appears by the record, that on that day “the defendant, Peter Lambrecht, by his attorney alleging, that the plaintiffs reside out of the state, on his motion it was ordered, that this suit be dissmissed, unless security for the payment of costs be given with the clerk of this court within sixty days from this time •” and as the record does not show, that any security for costs was given, the case without any further order stood dismissed at the end of the sixty days. Since 1792 it has been the statute-law of Virginia, that every suit by a non-resident should be dismissed, if security be not given, in sixty days with the clerk after notice to the plaintiff or his attorney, that such security was required. See Revised Code of 1792 (edition of 1803) ch. 76, § 23, p. Ill ; Revised Code of 1819 ch. 128, § 28, p. 495; Code of Virginia 1849 (edition of 1860) ch. 185, § 2, p. 767. Under these statutes it has long been the established practice in Virginia and in this' State to permit the plaintiff at any time after the expiration of the sixty days after the notice or entry of record, that security was required, and before an order was entered actually dismissing the case for want of the security, to give the required security. This practice was finally established as long ago as 1799 by the decision of the genernal court in Reed v. Sue, 1 Va. Cas. 123.
But it is insisted, that the Code of West Virginia of 1869, ch. 138, § 2, p. 662, in this respect changed the law, and that under this law after the expiration of the time fixed for giving the security the case stands dismissed without any order dismissing it. The language of our law is : “ No person, who is a non-resident of this State, shall hereafter prosecute any action or suit in any court in this State, until he has (if required by the defendant) filed with the clerk of the court security for the costs in the manner prescribed.” It is much clearer under our statute, than it was under the Virginia statutes, that the suit after the expiration of the time allowed by the court for giving security for costs, did not stand dismissed, and that it required an order subsequently to dismiss
In the case before us they actually after the expiration of the sixty days asked the court to continue the case, instead of asking it to dismiss the case. This was an express waiver of their right then to have it dismissed. They could of course afterwards have withdrawn this waiver and required the giving of the security for costs; but they never did so. The court below did not err in proceeding further with the case.
The next enquiry is: Did the circuit court err in refusing to set aside the verdict and in entering up a judgment on the verdict'in favor of the defendants? There had been a writ of enquiry of damages awarded against both defendants at .rules. Only one of them appeared and set aside the office-judgment and pleaded non-assumpsit, on which issue was joined. At a subsequent term of the court this issue was tried by the jury. It is obvious, that both the court and the parties had forgotten the state of fhe pleadings and proceeded^ as if the office-judgment had been set aside by both of the defendants pleading non-assumpsit. This is shown by the fact, that the jury found a verdict for both defendants, and the court in pursuance of it entered up a judgment for both defendants. It is also shown by the bill of exceptions, by which it appears, that both defendants defended the case before the jury on the trial and offered evidence in their behalf. It also appears by the affidavit of the defendant, who did not appear, but which is properly no part of the record, though copied into it by the clerk. Of course there could be no judgment against or in favor of the defendant, who had not appeared, until the writ of enquiry was executed. The verdict of a jury in favor of a defendant, who had not appeared, was clearly erroneous and should have been set aside ; and this cause-must by this Court be remanded to the circuit court to be proceeded in regularly.
This is not the only error committed by inadvertence in
This section (see page 628 of the Code) is as followá : “In an action founded on a contract against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any other or others of the defendants, against whom he would have been entitled to recover, if he had sued them only.” I am strongly inclined to the opinion, that the true meaning of this section is to be found by construing this section, as though the words, with which it closes, “ if he had sued them only,” meant “ if he had sued them only on the contract alleged in the declaration.” For my views see Choen v. Guthrie et al., 15 W. Va. 108. These views however differ from those expressed by Judge Staples in Bush v. Campbell, 20 Gratt. 430. His opinion is, that the true meaning of this section is to be found by construing its concluding words, “if he had sued them only,” as if they meant “ if he had sued them only on the contract proven by the evidence on the trial.” The difference between these two constructions is, that by the first the operation of the 19th section of chapter 131 of our Code, page 628, would be confined to cases, where the declaration set out a contract, on vdiich the plaintiff could in a proper suit recover either jointly or severally against the defendants, as a negotiable note endorsed, or a joint and several contract j while by the second view this section would be construed as applying to a declaration, which stated only a joint contract.
The judgment of the circuit court of April 22, 1876, must therefore be set aside, reversed and annulled ; and the plaintiffs in error must recover of the defendants in error their costs expended in this Court; and this Court proceeding to render such judgment, as the circuit court ought to have rendered, the verdict of the jury must be set aside, and this case remanded to the circuit court of Mason county to be therein proceeded with according to the principles laid down in this opinion and further according to law.
Judgment Reversed. Cause Remanded.