53 So. 1009 | Ala. | 1911
This appeal is from a judgment dismissing this cause for failure of the plaintiff (a nonresident) to comply with an order of the court requiring him to give security for costs, and adjudging that defendants have and recover of the plaintiff their costs in that behalf expended.
This judgment was rendered October 9, 1909. The bill of exceptions Avas presented to the trial judge on June 21, 1910, more than 90 days after the entry of the judgment to revise which this appeal is taken. The appellees move this court to strike the bill, because not presented within 90 days after the judgment was entered. According to the express provisions of the statute (Code 1907, § 3019), the motion must prevail.— Smith v. State, 166 Ala. 24, 52 South. 396; King v. Hill & Shaffer Co., 163 Ala. 422, 51 South. 15; Edinburgh American Land Mort. Co. v. Canterbury, 169 Ala. 444, 53 South. 823.
On June 9, 1909, defendants moved that the plaintiff, a nonresident, be required to give security for costs “within such reasonable time as the court may prescribe, or, in default of the giving of such, security within the time so prescribed by the court, that this suit be dismissed.” The court-records show this subsequent order or judgment: “On this the 12th day of June, 1909, come
The judgment appealed from was entered October 9, 1909, more than 90 days after the just quoted.order or judgment was entered. It reads: “On this the 9th day of October, 1909, come the defendants by their attorneys and show to the court that the plaintiff herein has not complied with the order of this court of June 12, 1909, requiring the said plaintiff to give security for costs in this cause, and move the court for an order dismissing this cause from this court, whereupon, it is ordered and adjudged by the court that this cause be and it is hereby dismissed from this court, and that the defendants go hence without day, and.have and recover of the plaintiff their costs in this behalf expended, for which let execution issue.”
The order or judgment of October 9, 1909, but effected the agreement, the recital of which appears in the minute entry of June 12, 1909, in connection with the motion to which it related. The only condition to the dismissal was that the costs should be secured within 90 days. The court, on October 9, 1909, ascertained that the condition had not been met by the plaintiff. Hence the dismissal, was the defendants’ due under the agreement. Accordingly, the judgment appealed from (that of October 9, 1909) is affirmed.
Affirmed.
