95 So. 49 | Ala. | 1922
The motion in the court below, as well as the prayer in the present petition, seeks a dismissal of the last action of ejectment because the plaintiff was in effect in contempt of court for noncompliance with the order of the circuit court in a former action of ejectment between the same parties or their privies and does not seek a stay of the present action until the payment of the cost in the former or a dismissal upon a failure to pay said cost. It seems to be the petitioner's contention and theory that the order of dismissal of the former action of ejectment because of the nonpayment of the cost in a former chancery case, whether correctly made or not, no appeal having been taken, is conclusive against the plaintiff's right to maintain the present action of ejectment. This contention is not sound, as the plaintiff is not in contempt, and the former judgment of dismissal merely ended the pending *655
cause, and the plaintiff suffered the only penalty thereby provided — the dismissal of her suit for a failure to pay the cost of the chancery case — and which cannot be visited upon her in the present case or affect her right to maintain same except perhaps as to the payment of the cost of the former action of ejectment as a condition to proceed upon a proper motion of the defendant. Ex parte Colley,
For the reasons above pointed out the mandamus must be denied, but, as a guide upon the future progress of this cause, it is sufficient to suggest that the defendant is entitled to a stay of the suit until the payment of the cost of the previous action of ejectment or a dismissal for a failure of the plaintiff to do so. Ex parte Shear,
Mandamus denied.
SAYRE, GARDNER, and MILLER, JJ., concur.
