67 S.W. 427 | Tex. App. | 1902
This is an appeal from a judgment of the District Court of Reeves County, Texas, dismissing an original suit for slander, filed by the appellant against John L. Moore and wife on the 18th day of February, 1901, because of a failure on appellant's part to comply with a rule to give security for costs as provided by the statute.
The undisputed facts show that on the 4th day of March, 1901, the clerk of the District Court of Reeves County, Texas, filed a motion in due form under the statute that the plaintiff Ella Frazer be required to give security for costs. This motion was duly heard on March 5, 1901, and formal order therefor duly entered upon the minutes of the court the same day. The appellee Ellen Moore had been served with citation on February 19, and had filed her answer on March 4th. The appellee John L. More was served with citation on February 25th, too late to require answer of him at the March term of the court, which began March 4, 1901. No formal notice of the said motion was served upon appellant. It was duly filed, however, and entered upon the motion docket of the said court, and appellant's attorney was present in court and heard the motion presented and the judgment of the court granting it. The cause appears to have been continued. The order not having been complied with on or before September 2, 1901, the first day of the succeeding term, the court entered the order from which this appeal has been prosecuted, as stated, in the following words: "It appearing to the court in the above styled and numbered cause that at the March, A.D. 1901, term of this court, to wit, on the 5th day of said month, a motion was presented by the clerk of this court to require the plaintiff to execute and file a good and sufficient cost bond herein, and it further appearing that said motion was duly entered on the motion docket of this court, and that said motion was heard and in all things granted by the court, and an order was duly made and entered on the minutes of this court at said March term requiring the plaintiff to file said cost bond on or before the first day of the present term of this court, and it further appearing that said plaintiff has wholly failed to comply with said order to file said cost bond or otherwise comply with said order; it is therefore considered, adjudged, and decreed by the court that for the reasons above stated this cause be and the same is dismissed, and that defendants go hence without day, and that they have and recover of and from the plaintiff herein all costs in this behalf expended, for which let execution issue."
On the following day, September 4th, appellant by her attorneys moved to set aside said judgment of dismissal, and tendered the clerk $100 in cash, and also a bond in due form executed by herself and two sureties; but both the cash and the bond were refused, the clerk declining *429 to pass upon the solvency of the sureties of the bond or otherwise take action. The court overruled the motion to reinstate, whereupon the appellant duly excepted and gave notice of appeal.
It is first insisted that the motion for costs was prematurely made, because the case was an appearance case at the September term of the court, and that herefore appellant was not bound by the order; but our statutes seem to provide a sufficient answer to this contention, — "the clerk may require from the plaintiff in a suit security for costs before issuing any process." Rev. Stats., art. 1439. Article 1440 provides: "The plaintiff in any civil suit may, at any time before final judgment, upon motion of the defendant or any officer of the court interested in the costs accruing in such suit, be ruled to give security for the costs; and if such rule be entered against the plaintiff and he fail to comply therewith on or before the first day of the next term of the court, the suit shall be dismissed."
It is next insisted, in effect, that the order of dismissal is to be disregarded because notice of the motion was not given, and the cases of Houston v. Sublitt,
In the remaining assignment it is insisted that the trial court's action in refusing to reinstate the cause constitutes reversible error. We have carefully considered the assignment presenting this question, but have been unable to concur in such conclusion. On the presentation of the motion no proof whatever was offered of the truth of the allegations in the original petition from which the court could determine that appellant had merit in her case; nor was any excuse whatever offered why the rule for costs had not been complied with. Appellant on the hearing of the motion did not testify, neither did her counsel, nor was other *430
evidence of excuse offered, and for aught that appears in the evidence on the hearing of the motion appellant may not only have actually known of the rule requiring security for costs, but may have willfully disregarded the same. So far as we have been able to find, it has been uniformly held that to entitle a party to favorable action upon such a motion to reinstate, sufficient reason must be shown why the party failed to comply with the order of the court requiring security for costs. Union Bank v. Hudgeons Myers,
The judgment will be affirmed.
Affirmed.
