United Railways & Electric Co. v. Winer

²³⁶ Thomas, J., delivered the opinion of the Oonrt. The appellees, Jacob Winer and Frank Winer, co-partners trading as J. Winer .& Son, brought suit on the 9th of February, 1923, in the Superior Court of Baltimore Oity against the United Railways and Electric Company, a corporation, to recover damages alleged to have been caused by the negligence of the defendant. The declaration alleges that the automobile of the plaintiffs, while being driven in a careful .and prudent manner, was “struck and run into by a car owned, leased and controlled by the defendant,” and “being operated by the defendant, its agents, servants or employees, in a. careless and negligent manner, * * * as .a result of which the automobile of the plaintiffs was. damaged, and the plaintiffs were, put to great expense in having the necessary repairs made to said automobile and hiring another automobile in its place during the time said repairs were being made,” &e. The plaintiffs claim in the nor. damages to the amount of $1,500.

The defendant appeared by counsel, and on the 24th of February filed the. following interrogatories, to be answered by the plaintiffs: “1. What other party or parties not disclosed by the record, is or are financially interested, with the plaintiff of record, in the result of the trial of this cause ? “2. What is the extent of his or their interest, and when and how was it obtained? “3. If his or their interest was obtáined through a paper-writing state the date of such writing and produce the same, or a certified copy of the same; if unable so to do, state in substance the terms thereof, to the best of your knowledge and belief, and in whose possession the said paper is. “4.

If there was any consideration for the transfer of said interest to said party or parties, state the nature and amount thereof.” ²³⁷ On the 1st of March the plaintiffs answered the interrogatories as follows: “1. The Employers Indemnity Corporation. “2. Two hundred and fifty dollors; (b) By assignment in writing. “3. Assignment dated January 18th, 1823, in possession of Employers Indemnity Corporation, provides that the said Jacob Winer and Frank Winer, co-partners, trading as J. Winer and Son, transfer and assign to the said Employers Indemnity Corporation, all claim to damages recovered against the above defendant, to the extent of $250.00. “4.

Cash consideration of $250.00 paid on account of damage to automobile as a result of accident sued upon.” After the answers to the interrogatories were filed, the defendant filed a. motion for a “rule security for costs” on the plaintiffs, and the rule was laid. The defendant also filed a number of pleas and, on March 10th, the plaintiffs filed a motion to strike out the rule security for costs. At the hearing of this motion the defendant proved by Thomas B„ Keavney that he was the resident agent of the Employers Indemnity Corporation, and that said corporation was a corporation of the State of Missouri, with its principal office and place of business in Kansas City, Missouri. On cross-examination the witness testified that said corporation had complied with the provisions of the Code authorizing it to do business in this State, and had filed a copy of its charter with the State Insurance Commissioner, &c., and that he was the duly appointed agent of said corporation in this State.

The court helow sustained the motion of the plaintiffs to strike out the rule security for costs, and denied the rule, and from that ruling the defendant has brought- this appeal. The appellant relies upon chapter 382 of the Acts of 1900; (section 9 of article 24 of the Code), which provides: “The defendant in any action may at or before the trial court have a rule on tbe plaintiff or plaintiffs to ²³⁸ give security for the payment of the costs and charges which may he recovered against him Ur them in such action if the plaintiff or plaintiffs, or any of them, is not a resident or are not residents of this State at the time the motion is made for such rule; provided, that such rule shall he had only against a non-resident plaintiff or plaintiffs, or against a resident plaintiff or plaintiffs, who is an assignee or are assignees of or stand in the place of a non-resident plaintiff or plaintiffs.” In his analysis of this section, the learned counsel for the appellant contends, as stated in his brief, that a defendant is entitled to tbe rule security for costs against: “(1) a nonresident plaintiff or