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Goldsberry v. Frank Clendaniel, Inc.

Superior Court of Delaware, Sussex County

December 29, 1953

GOLDSBERRY
v.
FRANK CLENDANIEL, Inc. et al.

Action wherein defendants moved to require plaintiff to furnish security for costs. The Superior Court, Herrmann, J., held that defendants did not waive their right to apply for security for costs against out-state plaintiff by filing answer to complaint.

Motion granted.

Upon defendants' motion for security for costs. Motion granted.

Samuel R. Russell (of Tunnell & Tunnell), Georgetown, for plaintiff.

Everette F. Warrington, Georgetown, for defendants.

Stewart Lynch, Wilmington, amicus curiae.

HERRMANN, Judge.

The question for decision is whether the defendants have waived their right to apply for security for costs by filing an answer to the complaint.

Civil Rule 3(f), Del.C.Ann. provides:

‘ Security for Costs. In every case in which the plaintiff is not at the time of filing his complaint a resident of the State, or being, so, afterwards moves from the State, an order for security for costs may be entered upon motion after five days' notice to the plaintiff; in default of such security as provided in the order, the court, on motion, may dismiss the complaint.’

The Rule was preceded by a Statute[1] which provided:

[48 Del. 276] ‘ Security for Costs; Rule for When; How Entered or Effected; Increase of Security:-In all actions at law wherein the plaintiff is a non-resident, in qui tam actions, in actions upon administration or official bonds, and also in actions wherein the plaintiff, after suit brought, has been discharged under any bankrupt or insolvent law, the defendant, upon motion, and affidavit filed, that he has a legal and just defense to the whole of the plaintiff's demand therein, and stating the nature

Page 806

and character of such defense, the sufficiency whereof shall be determined by the Court, may have a rule for security for cost by a certain day, or that nonsuit be entered. Such security, where ordered, may be by bond, recognizance or deposit of money with the Prothonotary, to be approved by the Court when in session, or by the Prothonotary or any Judge in vacation. And the said Court, Prothonotary or Judge may at any time thereafter, for cause shown, change or increase such security.’

It will be observed that the Rule, like the earlier Statute, contains no provision as to the time when the defendant may or must move for security for costs. In the instant case, the plaintiff contends that the motion comes too late because the defendants have filed their answer to the ...


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