4 Tex. 120 | Tex. | 1849
This cause was dismissed for failure on the part,of the plaintiffs to comply with the rule requiring- security to be given for the costs.
It is contended that there was no such rule, or that the plaintiffs had no notice of it, and that therefore the judgment of dismissal was erroneous.
The proceedings in the cause were had .under tjho act to regulate proceedings-in tlie District- Courts, approved May 13, 1846. The seventh section of this statute is expressed in the following terms, viz : “Any party to a suit, at any time before final judgment, upon motion of .the other party or of any officer of the com-t interested in the costs accruing- in such suit or action, may be ruled to give security for the costs; and if such rule be entered against tho plaintiff,, and he fail to comply therewith on or before the first day of the next term, the suit shall be dismissed.
'This provision does not require that notice of the motion or rule should, .under ordinary circumstances, be served on the party to be affected. • The notice should he placed on tho motion docket, and the entry of the rule extended on the minutes; and this being done, the order becomes obligatory, and, if not complied with, the legal consequences of such failure must necessarily follow.
In this case there does not appear to have been any formal motion, though tins might be presumed had a rule been entered. But. there is no entry on the subject of costs or security to be given to be found on the minutes of tile court. The cause is dismissed at the costs of the plaintiff for the want of compliance with tlie rule for costs; but tills judgment is based on no previous order, or at least there is not in the record any evidence of such prelimimu-y rule being taken.
It is true there appears on tho judge’s docket the following enigmatical entry or memorandum, viz: Rule for costs by clerk.”
This is a mere direction to (he clerk to extend an order on tho minutes in relation to costs, and by a very liberal construction lie might understand that rule for costs meant a rule that security be given for the costs; but it furnishes no internal evidence as to the. party against whom the rule was taken, and in making the entry tho clerk must necessarily refer to the motion docket or other sources for information ns to the party against whom tho order must he made. Under (lie law as it then existed cither party might he ruled to give sccurily for costs; and had the note on the docket .been entered verbatim on the minutes, no presumption would arise that the rule was designed to operate on the plaintiff more than on the defendant. But parties’ rights are not to ho lost or affected by presumptions, even were the entry sufficiently clear to form a basis for inferences or deductions. When an order is made that security is to be given for the costs, the rule must, be expressed in distinct and appropriate terms and entered oil the minutes of the court-. Where the motion for the rule is
The'only objection to the reversal of tho judgment in this case which is of any force ¡irises from the want of a motion -to set-.aside the judgment at the term of il s rendition. This should have been done; but as it has been neglected, tlie question arises whether there is such error presented by the record as would demand the exorcise of the appellate jurisdiction. We are of opinion that this must be answered in tlie.affirmative.
The foundation of the judgment is altogether wanting. It is based on a supposed previous order which has no existence. It is such a -judgment as could not have been anticipated by tho plaintiffs or their attorney had they by any casualty been prevented from attendance at that term of the court. Presumptions are to be indulged to a certain extent in favor of the correctness of -judgments, even whore they are brought up for revision by error or appeal.
But tliis presumption is rebutted when the judgment must be founded on facts, as, for instance, on a previous order which tho record shows lias no.existence.
There can he no pretense in this case that the record.does,not show fully (as certified) all the proceedings had in the causo. Tf this he not true, the-appellee should by certiorari llave caused a more perfect transeript to he -transmitted to this court. Tliis has not been done. And it appearing that there is manifest error in tlie judgment, it is ordered that tlie same he reversed and cause remanded. - .
Judgment reversed.
