Goodenough v. Burton

Goodenough v. Burton, 109 N.W. 52 (Mich. 1906)

Court: Michigan Supreme Court · State Highest Courts
Decided: October 1, 1906
Docket: No. 59
Judges: Grant, Hooker, McAlvay, Montgomery, Moore
Citations: 109 N.W. 52146 Mich. 501906 Mich. LEXIS 851
Disposition: Affirmed.

Headnotes

1. Costs — Security—Chancery Court — Jurisdiction. Irrespective of whether section 9992, 3 Comp. Laws, applies to chancery causes, the circuit court in chancery has jurisdiction to order security for costs in a case before it, such power being incident to courts of general jurisdiction both at law and in equity. 2. Appeal and Error — Review — Matters Considered — Discretionary Rulings. This court will not review the exercise of discretion of a circuit judge in ruling on a motion for security for costs. 3. Costs — Security—Motion—Time to Pile. Where a motion for security for costs is filed with, or soon after, the answer, it is within the discretion of the circuit judge to determine whether it should be denied on the ground of laches. 4. Dismissal — Security for Costs — Failure to File. It is proper to dismiss a bill for failure to comply with an order for security for costs, reasonable opportunity for compliance having been given.

Summary

Appeal from Barry; Smith, J. Bill by Triphena Goodenough" against Edward A. Burton, administrator of the estate of Charles S. Burton, deceased, and others, for an accounting. From a decree dismissing the bill on failure to give security for costs, complainant appeals.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Hooker

Text extracted by OCR from a scanned original; check the original for exact wording.

Hooker, J.

In this cause the defendant moved for, and was granted, an order for security for costs, upon a showing that an execution could not be collected from the complainant’s property. The motion was made 20 days after the answer was filed, presumably as soon as a session of court would permit of its being heard. The complainant opposed it on three grounds:

1. That'the statute does not permit such an order in a chancery case.

2. That it is inequitable under the showing made, complainant admitting her poverty and filing an affidavit of merits.

3. That the motion was unduly delayed.

1. If the statute (section 9992, 3 Comp. Laws) does not apply to chancery causes, a court of equity has the power to order security for costs, which is incident to courts of general jurisdiction both at law and in equity. See Newman v. Landrine, 14 N. J. Eq. 292; Dyer v. Dunivan, *52 3 How. Prac. (N. Y.) 135; People, ex rel. Fuller, v. Oneida Common Pleas, 18 Wend. (N. Y.) 652; Swift v. Collins, 1 Denio (N. Y.), 659; Bradwell v. Weeks, 1 Johns. Ch. (N. Y.) 325; 19 Enc. Pl. & Prac. p. 340. Old Chancery Rule 6, and the present Rule 3, can have been based on nothing but such inherent power. See Skinner v. Lucas, 68 Mich. 424 , which recognizes the validity of Rule 6.

2. This court will not review the discretion of the circuit judge, who makes or denies an order for security for costs.

3. While it is a general rule that an application for security should be made as early as practicable, it is commendable to accompany it by an answer to the merits, and where it is filed with or soon after such answer is filed it is within the discretion of the circuit judge to determine whether .it should be denied on the ground of laches. Shaw v. Wallace, 2 Dall. (Pa.) 179; Gedney v. Purdy, 47 N. Y. 676 .

4. It was proper to dismiss the bill for a failure to comply with the order, a reasonable opportunity having been given. People, ex rel. Fuller, v. Oneida Common Pleas, supra; Gifford v. Roberts, 125 Mich. 410 .

The decree is affirmed, with costs of both courts.

McAlvay, Grant, Montgomery, and Moore, JJ., concurred.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

View all citing references →

Relies on it most ⓘ

Hall v. Harmony Hills Recreation, Inc463 N.W.2d 254 (Mich. Ct. App. 1990)
Gaffier v. St. Johns Hospital243 N.W.2d 20 (Mich. Ct. App. 1976)
Belfiori v. Allis-Chalmers, Inc309 N.W.2d 682 (Mich. Ct. App. 1981)
McCreery v. Roff155 N.W. 517 (Mich. 1915)
In re Ford's Estate63 N.W.2d 417 (Mich. 1954)
State ex rel. Slafsky v. Second Judicial District Court15 P.2d 682 (Nev. 1932)

Most recent

Laurel Neff v. Chapel Hill Condominium AssociationNo. 349444 (Mich. Ct. App. Jan. 14, 2021)
Armin Phillips v. Roger PommierNo. 324723 (Mich. Ct. App. Jan. 14, 2016)
Gerace v. Bentley62 V.I. 254 (2015)
Hall v. Harmony Hills Recreation, Inc463 N.W.2d 254 (Mich. Ct. App. 1990)
Belfiori v. Allis-Chalmers, Inc309 N.W.2d 682 (Mich. Ct. App. 1981)
Gaffier v. St. Johns Hospital243 N.W.2d 20 (Mich. Ct. App. 1976)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

Depth	Case	Cited by
	People v. Marsh, 51 L.R.A. 461 (Mich. 1900)	23
	Gedney v. Purdy, 47 N.Y. 676 (1872)	15
	Skinner v. Lucas, 36 N.W. 203 (Mich. 1888)	5

`/`	Focus the search box
`j` `k`	Next / previous result
`Enter`	Open the selected result
`x`	Add / remove the selected result from the download list
`n` `p`	Next / previous search term in a case
`c`	Copy the citation of the current case
`+` `−`	Larger / smaller reading text
`?`	Show this list