McGeehan, Bigelow, and Jayne. The opinion of the court was delivered by Jayne, J.A.D.
The present appeal calls our attention to the discretionary propriety of an order of the Burlington County Court denying the plaintiff's motion for the vacation of a judgment of involuntary dismissal granted on October 15, 1951. Rule 3:60-2.
A summary of the factual considerations before the trial court will suffice. The plaintiff evidently pursues the occupation of a fisherman on boats operating out of the port at Bivalve, Cumberland County. It seems inferentially that the means of communication with him were not ordinary. In the institution of the action which was dismissed his attorney appears by the present record to have erroneously represented him in the complaint to be a resident of the City of Philadelphia. In consequence of the statement of the plaintiff's non-residence within this State, the defendant demanded of the plaintiff security for the payment of costs. R.S. 2:27-424; N.J.S. 2 A:15-67, 68. An answer and counterclaim were filed on behalf of the defendant.
The pretrial order designated October 1, 1951 as the date for the trial of the action and further provided that "should the security for costs not be posted on that date by 10 A.M. that the plf's action will be subject to dismissal."
On October 1, 1951 the security had not been deposited and neither the plaintiff nor his attorney appeared in court. We are informed that the security was, however, supplied on October 9, 1951. The judgment of dismissal was granted as heretofore stated on October 15, 1951, and the counterclaim of the defendant abandoned.
About three months later a suit based upon the same alleged cause of action was instituted on behalf of the plaintiff against the defendant by another attorney in the Law Division of this court, Cumberland County, in which inter alia the defendant interposed the defense of res judicata. That averment occasioned the motion to vacate the judgment of dismissal entered in the former action.
A concise reference to the subject matter of the litigation is appropriate. The plaintiff alleged that on or about February 1, 1947 he and the defendant entered into an agreement by the terms of which he agreed to purchase the hull of a boat approximately 40 feet in length then located near Somers Point, and the defendant in consideration of the payment to him of $1,600 promised to move the hull to Delanco, repair and render it seaworthy, and upon completion of the work deliver it to the plaintiff. The plaintiff declared that he paid the consideration of $1,600 to the defendant but that the defendant failed to perform his obligations, hence the plaintiff rescinded the agreement and demands the return to him of the $1,600.
It is observable that our statutes (L. 1903, c. 247, § 205; R.S. 2:27-426; N.J.S. 2 A:15-69) have provided that where a non-resident party has been required upon notice or demand to give security for costs, "all proceedings [on his claim] shall be stayed until such [the required] security is filed or deposit made."
But in Sheehan v. LaBelle Co. , 92 N.J.L. 315 (Sup. Ct. 1918), our Supreme Court stated:
"In our opinion the filing of security of costs when demanded is a step in the cause, and, although the statute does not fix the time within which the security shall be filed, it manifestly must be done
within such reasonable time as the court may, in its discretion, determine; otherwise the defendant would remain subject to the action for an indefinite period. * * * Under the facts existing in the case now under consideration, we are of opinion that the defendant is entitled to his motion, and may enter a judgment of non pros. , with costs."
It is to be immediately acknowledged that the ultimate consequence of an unreasonable delay in providing required security for costs under our former practice and procedure was a judgment of non-suit with costs which would not in the absence of any other impediment preclude the plaintiff from the institution of another substituted action. So, too, would have been the nature of the judgment resulting from the inexcusable failure of the plaintiff or his attorney to appear in the cause on the day designated for trial. A non-suit in an action at law was never accorded the effectiveness of res judicata. Snowhill v. Hillyer , 9 N.J.L. 38 (Sup. Ct. ...