Wright v. Stanford

57 So. 289 | Miss. | 1911

Whitfield, C.

The appellee did not move to dismiss the suit for the want of security for costs promptly, as he should have •done. On the contrary, he filed his pleas on the first day of the January 1911, term of circuit court. Five days later the appellant filed his replications to said pleas, and two days after this appellee, for the first time, filed his motion to dismiss the suit because no bond had been filed within the time limited by law and the order of the court. The bond was filed sixty-one days, just one day too late, after the order requiring security to be given. In Kittle v. Railroad, 92 Miss. 381, 45 South. 867, the court said: “In all cases where it is not shown that the failure to comply with the order of the court as to time has operated injuriously to the rights of other parties to the litigation, the cost bond should be allowed to be filed at any time before the actual dismissal of the suit.”

Applying this principle in the light of the facts of this case, we think the court erred in dismissing the suit-

Reversed and remanded-

Per Curiam. The above opinion is adopted as the opinion of the court and for the reasons therein indicated the judgment is reversed, and the cause remanded-