Kittle v. Yazoo & Mississippi Valley Railroad

45 So. 867 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court.

It was not within the power of the clerk of the court to accept the bond for cost after the time limit fixed by order of the court; but, under the facts in this case, we think the court should have allowed the bond to be filed after tbe expiration of tbe sixty days. The motion for costs was not made by appellee, nor was it made exclusively for its benefit. Tbe record does not show tbat appellee was damaged in any way by tbe failure of appellant to file tbe cost bond witbin tbe time directed by tbe court. If it were shown tbat tbe failure of appellant to comply with tbe order of tbe court requiring bond to be given witbin the sixty days bad operated to tbe prejudice of tbe appellee in any way, we should not disturb tbe ruling of tbe court denying him tbe right to file tbe bond at a subsequent time; but no prejudice is shown. In tbe case of Kyle v. Stinson, 13 Smed. & M., 301, tbe court says: “The object of tbe statute was to'secure tbe payment of tbe costs which might be adjudged to tbe defendant, in case tbe plaintiff failed to obtain judgment, and the fees which were or might become due to tbe officers of tbe court.”

When we keep in mind tbe fact, as stated in tbe opinion above, tbat tbe object of this statute is to secure tbe payment of costs, and not to enable one having a just claim against another to be defeated in maintaining bis.suit, we are bound to reach tbe conclusion tbat tbe court below should have allowed tbe filing of this bond after tbe sixty days bad expired. Tbe purpose of tbe statute would have been fully attained by allowing tbe bond for cost to be given in this ease after tbe time required by tbe order. In all eases where it is not shown tbat tbe failure to comply with tbe order of tbe court as to time has operated injuriously to tbe rights of other parties to tbe litigation, tbe cost bond should be allowed to be filed at any time before tbe actual dismissal of tbe suit. In short, it is largely a matter of discretion with tbe trial court, subject to review by this court when improperly exercised. 11 Cyc., 186; Kyle v. Stinson, 13 Smed. & M., 301.

Reversed and remanded.