Ex parte Shear, 92 Ala. 596

Ex parte Shear

92 Ala. 596 | Ala. | 1890

STONE, C. J.

In England, the doctrine of former recovery, in its general extent, does not apply to tlie somewhat anomalous action of ejectment. In that country, any number of actions could be brought consecutively, and, in the absence of exceptional circumstances, one recovery was no bar to a second suit. It was only when chancery intervened to prevent oppression, that the prosecution of continued suits could be arrested. With us, this question is partially regulated by statute. — Code of 1886, § 2714.

To prevent an abuse of this power to oppress tenants in possession by irresponsible suitors, it was long ago settled in England, that if plaintiff, having failed in one action of ejectment, instituted a second suit without paying the costs adjudged against him in the first, the second suit, on motion, would be stayed, until the costs of the first were paid. — 2Tidd’s. Practice, 1233 ; Tyler on Ejectment, 596. And this practice has been largely maintained in the United States — Cuyler v. Vanderwerk, 1 John. Ca. 247 ; Perkins v. Hinman, 19 Johns. Rep. 257; Jackson v. Edwards, 1 Cow. 138 ; Jackson v. Carpenter, 3 Cow. 22; Jackson v. Miller, Id. 57; Ex parte Stone, Id. 380 ; Barton v. Speis, 73 N. T. 133 ; Taylor v. Vandervoort, 9 Wend. 449; Kerr v. Davis, 7 Paige, 53; Saxton v. Stowell, 11 Paige, 526; Swing's Case, 5 Halst. 58; Den v. Thompson, 14 N. J. Law, 193; Anon., 16 N. J. Law. 415.

It is contended for petitioner that the ruling of the Circuit Court was a denial to her of her right, guaranteed by the Constitution of this State, Art. I, § 14, which ordains ‘‘that every person, for any injury done him in his lands, goods, person, reputation, shall have a remedy by due process of law ;■ and right and justice shall be administered without sale, denial, or delay.”

We think this too broad an interpretation of the Constitutional guaranty. To so hold, would be to deny the right and power of the courts to imqDose terms as a condition of setting-aside a default or nonsuit, or as a condition of allowing an amendment or continuance. Many other categories frequently present themselves before the courts, in which the right to impose terms as a Condition of the relief prayed is essential to the just and fair administration of the law. We*599clo not think such action is in the slightest degree an infringement of the constitutional principle invoked. While awarding justice “without sale, denial, or delay,” courts should see •to it that equal justice is accorded to the adverse party.

Writ of mandamus denied.