Heinekamp v. Beaty

Judge Irvins delivered the following dissenting opinion, in which Chief Judge Alvey concurred: We regret our inability to concur with the majority of the Court in remanding this case for a new trial. We agree with them in thinking an error was committed in laying down the rule for the measure of damages .in the case, and that the rule for the admeasurement of damages in a case of trover, which this is, has been correctly stated in the opinion of Judge Bryan speaking for the majority of the Court. We are of opinion, however, that the judgment should be reversed without allowing a new trial, because of the error, as we regard it, of the Court, in refusing a non-suit, for non-compliance with the rule security for costs, when motion was made therefor. This rule was asked for and laid on the 23rd of September, 1889.

Section 9 of Art. 24 of the Code provides, that when such ruléis laid “the plaintiff shall have until the second day of the next term to comply ³⁹⁷ therewith, and on his failure to do so, he shall he non-suited.” When the rule was laid, the plaintiff hy the statute had till the second day of the next term to comply with it, and no longer. When the January Term came, and the rule was not complied with, the defendants were entitled to have the plaintiffs nonsuited upon motion therefor. At that term no motion was made fo'r non-suit. It was not made till September Term, 1890.

We were told at the hearing that meanwhile the case went on the stet docket; hut the record does not show this; and it does not show that the case was regularly continued and was so brought forward. It does not appear that defendants ever assented to a continuance so as to work a waiver of their rights, under it, as was ruled in State, use of Wilson vs. McCarty, 60 Md., 375 , had been done in that case hy consent given at a term subsequent to the expiration of the rule. The appellant had waived nothing. He had simply delayed making the motion for nonpros.

It has been contended that being a statute of indemnity, it was perfectly competent for the Court to extend the rule, or accept deposit of costs at any time before trial actually had. This it is said has been the practice in Baltimore and elsewhere in the State. It has certainly not been universal. It has never been the practice or construction of the statute in the circuits which we represent.

In our opinion it ought not to be the practice, for it is directly contrary to the statute. And we do not think that the McCarty Case justifies anything beyond acceptance of compliance at the moment motion is made for non pros., and even that we think unwarranted hy the statute. It certainly gives no countenance to an enlargement of the rule. Here acceptance of deposit was secured several days after motion for judgment for non-compliance.

It is a statute of indemnity, hut that indemnity is to be furnished hy a time fixed hy ³⁹⁸ the statute, which no power is given to the Court to enlarge. That rule may he waived by the party defendant, and a new rule may be laid on his motion, but his right under the statute is fixed and certain. It says the plaintiff “shall be nonsuited,” for non-compliance by the time set. It is peremptory, and the Court has no right against the will of the defendant to deny him his motion for non-suit.

In Morse vs. Rankin, 51 Conn., 327 , the lower Court allowed the plaintiff to give bond before trial, and proceeded to hear the case. The Appellate Court reversed the