Union Bank of Florida v. McBride, 2 Fla. 7 (Fla. 1848)

Supreme Court of Florida
January, 1848

Union Bank of Florida v. McBride, 2 Fla. 7 (Fla. 1848).

THE UNION BANK OF FLORIDA, FOR THE USE OF CHARLES MORRISON, vs. BURWELL McBRIDE.

Headnotes

A writ of Error will be dismissed on motion made for that purpose, where the plaintiff in error was the original plaintiff, and had not, previous to suing out his writ of error, paid all costs incurred in the court below, and given bond, as required by statute.

There is no exception to this rule in favor of non-resident plaintiffs.

Opinion

[*7] LANCASTER, JUSTICE:

This cause comes up by Writ of Error, from the Circuit Court for Jefferson county, Chief Justice THOMAS DOUGLAS having sat at the trial.

McCANTS, for Defendant, moved the court, that this Writ of Error be dismissed.

1st. Because plaintiff in error (who was original plaintiff) had not, at the time of suing out the writ, paid costs. 2nd. Because the plaintiff in error had not given a bond for costs, in such case provided by law.

Hagner, for Plaintiff, stated:

He did not know that costs had been paid, but thought it probable that, pursuant to a general understanding between the Clerk of the Circuit Court and himself, the costs had been charged to him. Also that a bond for costs in this court has not been given, and that Morrison, the real plaintiff in interest, resides in England, too far away to have been yet heard from, since the trial below.

 [*8] The statute of February 12, 1836, Thompson's Digest, 447, section 5, referred to by defendant's attorney, provides that "no appeal, or Writ of Error, shall hereafter be granted to the original plaintiff in any suit, unless said plaintiff first pay all costs which may have accrued, in and about said suit, up to the time when said appeal or Writ of Error is prayed; and, also, enter into bond, with one or more securities, in a sum sufficient to cover all costs which may accrue, in the prosecution of said appeal, or Writ of Error, conditioned to pay the same, if the judgment, sentence, or decree of the court shall be affirmed."

This act of the Legislature (believed by the court to be in full force) is regarded by them as applicable to and conclusive on this motion. The payment of all costs below, and entering into bond, as in the act prescribed, seem to be steps precedent to granting a Writ of Error, imperatively required by the statute. Any other construction would, they think, be repugnant to the act, an evasion of it, and, in some measure, render it inoperative.

The reason assigned for not having given the required bond does not, in the opinion of the court, strengthen the plaintiff's position. He is admitted to be a non-resident, and, therefore, not within the reach of process from the courts of this State. It is not sufficiently apparent that he paid all costs which accrued in and about his suit in the Circuit Court, the best evidence of which would be the certificate of the Clerk of that court, and in the opinion of this court, therefore, the most proper evidence. He failed in his suit below, yet, without payment of past costs, or security for those which may here accrue, he seeks further to pursue this defendant. His being a non-resident, adds legal force to the liability he was under to pay all costs below, as well as give bond for those which might accrue here before suing out his writ.

The court are unanimously of opinion the motion must be allowed, and do order this cause to be dismissed, and that the defendant, Burwell McBride, have judgment for his costs.