Needles v. Burk

Black, J.

— The petition is in two counts, each for a distinct cause of action. The jury returned a verdict for plaintiff for $143.60 on the first and for five dollars on the second count. Defendant appealed, and this court reversed the judgment and remanded the cause. The circuit court then made a rule on the plaintiff to give security for costs within sixty days. At a subsequent term, and without having obeyed the rule, the plaintiff dismissed as to the first count and moved for judgment on the second on the former verdict. Pending this motion, the court dismissed the suit for failure of plaintiff to give security for costs as required by the former rule. Plaintiff appealed to the Kansas City court of appeals, where the judgment was affirmed, and the case was then certified to this court.

1. The argument of the plaintiff is that the original judgment in his favor was reversed only as to the first count; that upon dismissing as to . that count, he had a right to a judgment on the second, without further trial. Where there are several causes of action, the court may direct separate trials, the judgment to await the trial of all the issues. R. S. 1879, sec. 3603. In such cases the awarding of a new trial as to one count would not call for a new trial as to the other counts. If all the issues are tried at the same time with a verdict upon each cause of action, we can see no reason why the court might not award a new trial as to one cause of action and let the verdict stand as to the others. The question then is, what was done in this case ? By looking to the opinion filed, when this cause was here before, we see that the errors considered related to the first count only ; but our judgment is general and without limitation. So far as onr judgment is concerned, it might as well be said the judgment of the circuit court was reversed for errors in the trial of the second, as for errors in the trial of the first count. When the cause was remanded it stood for new trial just as if the motion made for that purpose in the circuit court had been sustained. Whether that motion asked a new trial on one or both causes of action is not disclosed by this record. As both causes of action were tried at the same time and nothing to the contrary appearing, we must assume that the motion called for an entire new trial, and our judgment awards relief to the full extent of the prayer of the motion. The contention of the plaintiff cannot be sustained on this recerd.

2. But there is another view equally fatal to this appeal. The plaintiff became a non-resident after the commencement of the suit, and for that reason was ordered to give security for costs accrued and to accrue. Having failed to comply with the rule, a motion to dismiss was in order, and the security not being given before that motion was determined, the court but followed the statute in dismissing the case. R. S. 1879, sec. 986. Even if the plaintiff was entitled to judgment on the second count, still costs had accrued and were chargeable to him by reason of the reversal of the judgment, and the dismissal as to the first count. For these-costs the court might well require security before giving him a judgment on the second count. This matter of ruling parties to give security for costs rests largely in the discretion of the trial court, and no abuse of that, discretion is shown in this case.

The judgment is affirmed.

All concur.