State ex rel. Wilson v. McCarty

60 Md. 373, 1883 Md. LEXIS 42

• Court: Court of Appeals of Maryland
• Decided: June 20, 1883
• Status: Published

Opinion

Robinson, J.,

delivered the opinion of the Court.

The defendant was not entitled, we think, to a judgment of nonpros, in this case.

The rule, “security for costs,” was laid on the plaintiff at the October Term, 1881. The case was then brought forward by regular continuances to the January Term, 1883, and at this term, on the call of the docket, it was marked for trial. Subsequently, at the request of the defendant, it was agreed the case should be continued. This agreement it is true was not entered on the docket, but it is admitted that both sides understood the case was to be continued.

(Decided 20th June, 1883.)

The right to insist on a compliance with the rule, “security for costs,” is one which a party may waive; and when the defendant agreed the case should be continued, he must be considered as having waived this right for that Term. As the case stood upon the docket for trial, the plaintiff might have complied "with the rule at any time before judgment of non pros., and to permit the defendant to insist upon a compliance witli the rule, after he had agreed to a continuance, would in many cases work a surprise to the plaintiff. Relying upon the agreement to continue the case, he may not have made the effort to comply with the rule at that Term, and which he otherwise might have done, if the case stood for trial. The defendant had no right therefore to insist upon a compliance with the rule at this time.

The parol evidence offered by the plaintiff, is not sufficient to show a compliance with the rule. This could only be done by the payment into Court of a sum of money sufficient to meet the probable costs of the case, or by giving bond with surety, by a docket entry, showing an ■acknowledgment or obligation of some kind on the part of the surety, which could be enforced.

Judgment reversed, and cause remanded.