Rosenfeld v. Swarts ( 1900 )

It has long been settled in this State that the statutory provisions relating to surety for costs from resident suitors are not mandatory. In Spalding v. Bainbridge, 12 R.I. 244, construing Gen. Stat. cap. 195, § 26, the language was that upon cause shown the court shall require surety. The court held that, although the statute was peremptory in form, the matter was still left to the discretion of the court. Gen. Laws R.I. cap. 247, §§ 2, 3, 4, are substantially the same, except that section 4 uses the words "shall be dismissed" in place of the former words "may be dismissed." These words, however, are no more mandatory than those construed in Spalding v. Bainbridge. They clearly mean that, upon a refusal to comply with the order of the court, the action or suit shall be dismissed. But the court may extend the time for giving surety, and the acceptance of the surety in this case, after the time first named had expired, amounted to nothing more than an extension of time. The court is, therefore, of opinion that the order was properly made, and the respondents' motion for an order of dismissal is denied.