Bronson v. Freeman , 8 How. Pr. 492 ( 1853 )

Harris, Justice.

Ever since the year 1830, it has been the uniform practice, when application was made by the defendant to a judge, in vacation, for an order that the plaintiff file security, to make such order in the alternative, requiring security to be filed in twenty days, or that the plaintiff show cause why such security should not be required, at the next special term thereafter. This, with a stay of proceedings in the meantime, obtained in the manner prescribed by the Code, is undoubtedly the proper practice yet. But the statute (2 R. S. 620, § 3,) does not require that the order should be made in this form. It authorizes a judge of the court, in vacation, to require the plaintiff to file security for costs. This the county judge did. He had authority to make the order. It was not void, though it was irregular, as not being in conformity with the settled practice. Upon motion for that purpose, it would probably have been set aside for irregularity, but the plaintiff was not at liberty to disregard it,, nor did he, for afterwards, though not within the time prescribed by the order, he proceeded to file security.

But the time for the defendant to answer had not expired when the plaintiff proceeded to enter judgment. The judge, having made the order for security, on the 31st of January, made another order enlarging the time to answer until ten days after the security should be filed, and the sureties, if excepted to, should justify, and notice of such justification should be served on the defendant’s attorneys. He had authority thus to enlarge the time to answer. There is no limit to his power in this respect; nor was there any objection to his making the time to answer depend upon an act to be done by the plaintiff. The defendant had ten days to answer, after the plaintiff should have done all that he was required to do by the order of the 22d of January. This he never did. He filed security and the surety made an affidavit of justification. It would seem to be an idle thing to require a surety who had made a full affidavit of justification, when he became surety, to make the same affidavit again, when an exception to his sufficiency should be taken. But this is the provision of the statute. And see matter of Faulkner, (4 Hill, 30.) The plaintiff’s'attomey probably supposed he had satisfied the order of the 22d of January, when he filed security, with the affidavit of justification made by the surety, and served a copy of the bond and affidavit upon the defendant’s attorney. But in this he was mistaken. He should have obtained a new affidavit from the surety, after receiving notice of the exception, and have served a copy of that affidavit upon the defendant’s attorney. Until that was done, the ten days allowed by the order of the 31st of January did not commence to run. The judgment must be set aside, but, as both parties have been irregular in their practice, neither is entitled to costs upon this motion. The defendant may have ten days from the entry of the order upon this decision, to answer or demur to the complaint.