Arnold v. Pittsburg Coal Co.

Plaintiff brought suit in the common pleas court against the same defendants herein on the same cause of action, which suit was dismissed without prejudice at the plaintiff’s costs. Plaintiff thereupon brought this action. Plaintiff has never paid the costs of the common pleas action. The motion to dismiss herein is based on that omission of plaintiff.

Defendants submit a number of authorities in support of their motion, an examination of which discloses that all of them involve the element of non-residence. The rule seems to be that the statutory provision as to security for costs from non-resident suitors is but declaratory of an inherent right in the courts to exact such security from such litigants, and in default thereof, to dismiss the action. But the authorities do not seem to justify such summary action against resident plaintiffs, even in cases of vexatious litigation. It is undoubtedly w-ithin the power and authority of the court to preserve a defendant from harrassing suits, but the power of the court seems to be limited to staying or postponing any proceeding before it on the part of the annoying plaintiff, until the costs of the former action or actions have been paid.

Hence, it follows herein that defendants* motion to dismiss must be denied, but if defendants wish, they may take an order herein staying all further proceedings oh the part of the plaintiff in the case in this court until the costs m the common pleas court have been paid.