Reid v. Brasher

7 Port. 448 | Ala. | 1838

GOLDTHWAITB, J.

— When the writ, in this suit was issued, security for the costs appears to have been given, and as this is necessary in no case where bail is not required of the defendant, we infer that the plaintiff was a non-resident. At a subsequent term, an order was made for the plaintiff to give additional security for costs, by the first day of the next term, or the suit to be dismissed. No security having been given under this order, the court at the ensuing term dismissed the cause, notwithstanding it was then shewn on the behalf of the plaintiff, that the sureties for costs were residents of this State; the court conceiving itself bound by the previous order.

We have no doubt but that it is within the legitimate powers of a court to require additional security for costs, in all cases where security can be required in the first instance, as otherwise, the object and intention of these very salutary statutes might be defeated; but no cause ought to be dismissed, except in cases clearly warranted by the statutes.

The previous decisions of this court on this subject, are somewhat inconsistent. In the case of Reid vs. Carson, (Minor, 17,) it is held, that when a suit is dismissed, because security for costs is not given, enough ought to appear on the record, to shew the jurisdiction and authority of the court under the statute, — -that it should appear that the plaintiff resides without, and the defendant within the State.

In the case of Miller vs Thompson, (2 Stewart, 470,) the court seem to have held, that it was unnecessary for any reason to be shewn for the order, and that it would presume that sufficient proof was made previous to granting the same. In neither case, however, was this point necessarily involved in the questions before the court.

Considering the question as not settled by authority, we think that in all cases where a suit is dismissed in this summary manner, the reasons should appear of record, iir order that it may be seen that the case is within the provisions of the statute. We do not conceive that any difficulty will arise from thus regulating the practice: as the motion is always made at the instance of a defendant, he can, if entitled to dismiss the cause under the statute, always shew to the court, and cause to be spread on the record, the reasons for the exercise of this summary jurisdiction.

Let the judgment be reversed, and the cause remanded.