49 S.C. 560 | S.C. | 1897
The opinion of the Court was delivered by
The action herein was commenced in January, 1893, for the partition of a tract of laud in possession of the defendant, which the plaintiffs alleged they and the defendant owned as tenants in common. The defendant appeared in the action,i and it was agreed that she should file her answer whenever she saw fit to do so. A short time before the March, 1897, term of the Court, the defendant, upon being notified that the plaintiffs expected to go to trial at thát term of the Court, filed her answer, denying all the allegations of the complaint, setting up title
The foregoing was all written on one page of legal cap paper, the words of the clerk following immediately after the signature of A. C. Durant. This paper was duly filed on May 26, 1893. Upon the call of the case, and without giving notice, the defendant made the following motion in writing: “The defendant excepts to the security for costs, as filed May 26, 1893, on the ground that the paper purporting to be the security for costs is not witnessed by the clerk of the court, as required by law. And the defendant now moves for an order that the plaintiffs be declared non-suited. This motion is based upon the requirements of an order heretofore granted by this Court, requiring that the plaintiffs file security for costs by the 1st day of June, 1893, or be nonsuited.”
His Honor, Judge Klugh, held that the security for costs complied with the law, and refused the motion. The defendant appealed from said order on the following grounds: “Because his Honor, the presiding Judge, erred in holding that the security for costs as filed complied with the law, and erred in refusing to grant the defendant’s motion for an
This rule was amended in December, 1893, by adding the following to said required form: “Witness, G. H., C. C. P. and G. S. Approved, G. H., C. C. P. and G. S.”
It thus appears that at the time security for costs was filed, the form prescribed by the rule of Court then of force did not provide in what manner it should be made to appear that the clerk had witnessed the signature of the surety, and in the first instance judged of the sufficiency of the
It is the judgment of this Court, that the order of the Circuit Court be affirmed.