57 So. 16 | Ala. | 1911
Lead Opinion
In the case of L. W. Phillips v. Caldwell Bradshaw, pending in the city court of Birmingham, the defendant filed his motion to- require the plaintiff, a non-resident, to give security for the costs of suit; and on December 24, 1910, the trial judge granted an order, duly entered on the motion docket, as follows : “December 24, 1910. Ordered that plaintiff give security for costs in above-styled cause within thirty days from this date or cause shall stand dismissed. C. C. Nesmith, Judge.” On January 23,1911 — the thirtieth-day of the period prescribed — plaintiff’s attorney appeared before the court and by verbal motion asked for an extension of the time for giving such security. This motion was held under consideration by the court until January 25, 1911, at which time plaintiff’s attorney
As we understand from the brief and argument of petitioner’s counsel, it is not contended that the provision inserted in the order of December 24th, that in case of default by plaintiff “the cause shall stand dismissed,” operated ipso facto to effect the dismissal. And we think, on both principle and authority, it would not so operate. — Whittaker v. Sanford, 13 Ala. 522; Springfield Co. v. Construction Co., 49 Ohio St. 681, 32 N. E. 961; Ex parte McLendon, 33 Ala. 276.
.Our statutes requiring non-resident plaintiffs to give security for costs, beginning with the territorial act of 1807, have differed greatly in language, purpose, and ■effect, and it becomes necessary to briefly review them
The act of 1807, as found in Toulmin’s Digest, p. 350, and in Clay’s Digest, p. 316, provided that suits should be dismissed for failure to giAe the security Avithin 60 days after notice of requirement to do so. As interpreted by this court, the time thus prescribed AAas held to b.e not mandatory,' and the plaintiff had a right to offer and give the security at any time before actual dismissal, and even Avken the case Avas called for trial; and dismissal in the case of such an offer Avas erroneous.— Whittaker v. Sanford, 13 Ala. 522.
This law no doubt proved inefficient, and there Avas placed in the Code of 1852 (as section 2396) a provision that such suits must be dismissed on motion unless security for costs was indorsed on the complaint, or lodged Avith the clerk, previous to the issue of the sum•mons. This statute Avas held to be mandatory, and its requirements a condition precedent; and the plaintiff’s failure to conform to its requirements demanded the dismissal of his suit by the trial court on motion therefor. And if the court failed on motion to execute the sentence of dismissal denounced and perfected by the statute, it could be compelled thereto by Avrit of mandamus at the petition of an interested party. — Ex parte Cole, 28 Ala. 50; Ex parte Robbins, 29 Ala. 71; First National Bank of Anniston v. Cheney, 120 Ala. 122, 23 South. 733.
This laAv remained in force until repealed by the act of February 17,1885, (Sess. Acts 1884-85, p. 137), which provides for dismissal as formerly, “or unless security be furnished as required by the court ón motion therefor.” This act as codified in section 2858'of the Code
Under this present statute it has been held by this court that the plaintiff’s failure to give the security as prescribed requires the dismissal of the suit, and that the trial court may be compelled thereto by writ of mandamus at the petition of the defendant. — First National Bank v. Cheney, 120 Ala. 117, 23 South. 733; Ex parte L. & N. R. R. Co., 124 Ala. 547, 27 South. 239; Ex parte Smith, 168 Ala. 179, 52 South. 895. It has also been held that it gives to the court a discretionary power to prescribe the time within which the security should be given, that once fixing the time does not exhaust this discretion, and that the court has the same right to extend the time thus prescribed as it had to fix it in the first instance. — Ex parte Jones, 83 Ala. 587, 3 South. 811.
Looking to the history and purpose of the statute, and especially to the office and operation of its immediate progenitor (section 2396 of the Code of 1852), we can discover in the additional provision ingrafted on the old law no other legislative purpose than to merely allow the trial court, in its sound discretion, to substitute for the former condition precedent to filing the suit a new condition to its further maintenance — but none the less a condition precedent. And we are clear in the conviction that the plaintiff’s failure to give the security within the terms of the order of the court, thus substituted by it for statutory condition, has exactly the same effect as had under the prior statute his failure to give the security previous to the issue of'the summons. We are unable to assent to the suggestion o'f
We now come to consider the precise questions presented by this petition, viz., whether the extension of plaintiff’s time for giving the security, as originally prescribed by the order of December 24, 1911, could be granted only by an order made before the 30 days had expired; any subsequent order being functus officio. And, if it must have been so made, whether such order must be evidenced by the usual written memorial, i. e., by an entry upon the records of the court, or hy a writing duly filed; or whether, upon the verbal application of the plaintiff, made before the expiration of the 30 days, the court may carry the matter in the breast Of the judge beyond the allotted period, without the entry of any order expressly or impliedly extending the plaintiff’s time, and then at a later day enter an appropriate order of extension which shall be of the same effect as if duly entered before the expiration of the 30-day period.
We find no difficulty in reaching' the conclusions.: (1) That any attempt of the trial court to extend the period once prescribed, by action taken after its expiration, is unauthorized, null, and void. — Ex parte Jones, 83 Ala. 587, 3 South. 811; Kimball v. Penny, 117 Ala. 245, 22 South. 899; Morris v. Brannen, 103 Ala. 602, 15 South. 865; Rossen v. State, 92 Ala. 76, 9 South. 357; Bass Furnace Company v. Glasscock, 86 Ala. 244, 6 South. 430. (2) That the order of extension, like the
We note in passing that it has been once held by this court that an order continuing the cause, entered within the period first prescribed for the giving of the security, keeps alive the discretion and power of the court to grant a further extension of time; such order being in itself, by necessary implication, a general extension.— Ex parte Jones, 83 Ala. 587, 3 South. 811. We recognize this case as'authority for the proposition. that the order of extension need not expressly and specifically extend the period already prescribed, but may have that effect if of such a character as to necessarily imply an extension.
Applying the principles and conclusions above enunciated to the facts of the present case as .shown by the answer of the learned trial judge, we are unable to escape the final conclusion that the mere application of the plaintiff for an extension of the 30-day period previously granted him for giving the required security for costs, though made within that period, there being no order made or entered by the trial judge until after that
This, we conceive, after thorough consideration, to be the true meaning and intent of the statute, which it is our duty to declare.
We need not now determine whether, if the security were in fact filed before the defendant interposed his motion to dismiss the cause, the motion would be thereby rendered unavailing; nor what delay or other conduct on the part of the defendant would operate as a waiver of his right to a dismissal — questions not presented by the record.
Let the peremptory writ issue as prayed for in the petition.
Rehearing
On Rehearing.
A spirited criticism is made of the reasoning and the conclusion of the court as stated in the foregoing opinion. It is insisted: (1) That we have unwarrantedly read into the statute the word “first” in order to qualify the word “direct”; (2) that we have strictly construed a penal statute which ought to be construed liberally; (3) that we have violated the plain meaning and effect of two previous decisions of this court, viz., Ex parte Jones, 83 Ala. 587, 3 South.
In view of the practical importance of the question adjudicated, we deem it worth while to notice these arguments.
It is, indeed, an elementary rule that penal statutes should be strictly construed unless they exhibit a specific or general intent to the contrary. But, in the long process, of legislative evolution and change, our statutes on this subject have long since passed the state Avhen that rule, or the reasoning upon which it rests, can be accorded any controlling force. The only question here is: Hoav far did the Legislature intend to abrogate the mandatory meaning of the statute of 1852? Did it intend a complete or only a partial reversion of the discarded and inefficient rule in force prior to 1852?
It is obvious that the ruling complained of does not require that the statute be read “within such time thereafter as the court may first direct,” nor have we given it any such meaning. On the other hand, we are not authorized, as insisted upon by counsel, to make the statute read “within such time or times as the court may direct”; for “time” as here used, means no more nor less than period. Indeed, if it Avere an open question, it might Avell be doubted whether it Avas ever intended to vest in the trial court the power of continued and indefinite extension of such period of time as its original order prescribed. As to this, however, we are bound to adhere to the ruling in Ex parte Jones, supra, which it must be presumed, has been sanctioned by later re-enactments of the statute.
The writ was denied in that case only because the defendant had not filed any preliminary motion to require security, and hence was not. yet entitled to a peremptory dismissal.
Even the most biased mind must concede that the declared right of a defendant by mandamus .to compel the ■trial 'court to dismiss the suit is wholly incompatible with the theory of a judicial discretion residing in that court. If, then, the defendant may resort to mandamus to vindicate his right, it is pertinent to inquire what right he has. If the trial court may prescribe the time within which the security must he given., and also after that time has completely elapsed prescribe a new period, and so on indefinitely at his uncontrolled discretion, it is quite certain that the defendant remains with no right at all, for there is no stage at which be may successfully coerce the action of the trial court. If the time fixed by the original order has expired without response from the plaintiff, how long must the defendant delay the assertion of his right to the writ of mandamus? Clearly, if he has any right at all, it is complete when the plaintiff has failed to act within the time allowed him by the order. If not, each application for mandatory relief, whenever he may have the temerity to seek it, will be effectually met by the answer of the trial judge that he has on that very day made an order fixing a new period of time; and it would of necessity result that the petition would be dismissed.
The ruling in Ex parte Jones, supra, left but little life in the mandatory feature of the statute, and we are unwilling to now sanction its complete devisceration. In that case it was said: “The time within which the security is to be given is here made to rest within the sound discretion of the presiding judge. His once fixing the time did not exhaust the exercise of this discretion. He had the same right to extend it, as he did to fix it in the first instance.” And the right to extend the time was plainly based upon the fact that the extension Avas made within the period first prescribed, and Avhile the power Avas still alive.
It is now insisted that this language supports the respondent’s contention and refutes our conclusion to the contrary. This argument is founded on a misapprehension of the meaning of the language quoted. To extend is to draAV out, to prolong, to continue; and, ex vi termini, it can only refer to something already in existence. It is therefore idle to speak of extending a given period of time which has already completely expired. If a neAV period is then designated, it is not an extension of the old period, but the creation of an entirely new one. — State v. Scott, 113 Mo. 559, 20 S. W. 1077; W. C. R. Co. v. Comstock, 71 Wis. 88, 36 N. W. 843; 844; Clement’s Ex’rs. v. Dickey, 5 Fed. Cas. 1025, 1027. And this court is fully committed to this view.
A statute of this state formerly gave to circuit judges the poAver in term time to “fix the time in which the bill of exceptions shall be signed,” and further provided that “the judge, in vacation, may for good cause shown extend the time fixed in term time.”- — Sess. Acts 1886,
No reason has been given, and we think none can be given, why the same rule of construction should not be applied to both statutes; and certainly distinctions without differences are not creditable to the law.
Application overruled.