Dean v. Cannon , 1 Daly 34 ( 1860 )

Brady, J.

The judgment must be reversed. The plaintiff was a non-resident, and did not file security for costs. Hallenbeck v. Gillies, 7 Abb. Pr. Rep. 421.

The Justice declined to dismiss the action on the ground that the cause was sent hack by this Court for a new trial, seeming to regard it as a duty to dispose of the case on its merits for that reason. A new trial was ordered by this Court, because the defendant failed to appear, and alleged a defence on the merits. The order for a new trial imposed no duty upon the Court below, inconsistent with or restrictive of any of its powers. The case was to be heard and decided, although it was sent back, in the same manner as though it had been an original one. The statute is imperative. When it appears at the trial that the plaintiff is not a resident, and has not given security (Hallenbeck v. Gillies, supra), the Justice must dismiss the complaint. These facts did not appear at the trial, and were not controlled in their legal effect by any order of this Court.

Judgment reversed.