Lewis v. Lewis

25 Ala. 315 | Ala. | 1854

LIG-ON, J. —

Under the decision of this court in the case of Reid v. Brasher, 7 Porter 448, the court erred in entering the order requiring the plaintiff in the court below to give security for costs, nunc pro tunc. The entry on the judge’s docket of the previous term, failing to show the reason why the Order was made, would not justify its being entered nunc pro tunc at a subsequent term. The case cited from 7 Por. overrules the case of Miller v. Thompson, in 2 Stew. 470, in which a different decision was made. The practice, in respect to such orders, may be considered as settled by the case of Reid v. Brasher.

The proof of non-residence, offered at the trial, would not justify the order of the court, made at that term, for two reasons : First, the requirement to give security in a less time than sixty days is opposed to both the letter and the spirit of the statute on this subject. — Clay’s Dig. 316, § 26. Here it was peremptory, and security was required to be given instanter. Second, the proof which was offered as to the non-residence, at the term at which the entry of dismissal was made, extended only to the nominal plaintiff. If either the beneficial, or the nominal plaintiff resides in this State, no security for costs can be required under our statute, since they are regarded as joint plaintiffs, in respect to the costs of suit, and both are liable for them. — Clay’s Dig. 316, § 22,

Let the judgment be reversed, and the cause remanded.