48 Ala. 151 | Ala. | 1872
This is an application for a mandámus¡ by Hannah Abrams, against the judge of the eleventh judicial circuit, sitting in and for the county of Butler.
The facts set forth in the petition and the bill of exception, which is made a part of the petition, are briefly these; The petitioner, Mrs. Abrams, sued Joseph E. Abrams, as surviving partner of the firm of J. E. & H. S. Abrams, in an action of debt, to recover five thousand dollars, money
“Game the parties by'their attorneys, and on motion of the plaintiff for a continuance of this cause, it is ordered by the court, that this cause be continued by the plaintiff on payment of the costs in this behalf expended in ninety days.”
The plaintiff failed to pay the costs as required by this order in the time therein prescribed. But she brought the money to pay th'e costs into court at the next term to which the cause had been continued, before the cause was called for trial; and on the call of the cause for trial she was ready in court with the money to pay the costs, and tendered the same for that purpose and declared herself ready and willing to pay the same. The court refused to permit the money to pay the costs thus tendered to be paid into court for that purpose; and, on motion of the defendant, “ struck the cause from the docket and adjudged the cause to be at an end.” To this the plaintiff objected, and reserved the objection by proper bill of exceptions.
The order above quoted is clearly a continuance of the cause until the next term of the court in due course, with directions that plaintiff shall pay the costs in ninety days after the order for the continuance was allowed. But there was no order that if the costs were not paid in the time limited, then the cause should be dismissed. At the next term of the court after the continuance, the cause was still pending. It had not been dismissed, nor had the plaintiff been advised that it would be dismissed on a failure to pay the costs in ninety days. The words, “on payment of the costs in this behalf expended,” do not necessarily imply a condition. They only signify the terms on which the con
The principles settled in the case of Ex parte Lowe, (20 Ala. 330,) seem fully to justify the allowance of the remedy by mandamus in this case.
And the issuance of a rule nisi having been waived by agreement of counsel filed in this cause, a peremptory mandamus will be issued in conformity with the prayer of the applicant’s petition. Costs will be reserved until the com* ing in of the return to the mandamus.