2 Stew. 470 | Ala. | 1830
It appears by the record as entered at the first term, only that the motion was made; no disposition ot it appears. It does not appear that the Court required the security, that proof of the non-residence was made, or that the plaintiff or his attorney was in Court, or had any notice of the requisition; but an order for the dismissal was entered nunc pro tunc, on oral proof. The statute provides
This requisition for security is understood to have been made under the authority of the first act referred to; and though the law did not require that it should be by motion to the Court, but by notice to the plaintiff or his attorney; yet as a motion in Court, in the presence of the party or his attorney, is equal to any other notice, and the Court can, at the same time, determine the fact of non-residence; and as an order requiring the security would pre-suppose the proofs made, there can be no objection to that mode of proceeding. But a mere motion on the minutes requiring the security, can avail nothing. The
In this case we have no hesitation in saying the order of the Court below, rendered nunc pro tunc, on oral testimony, was erroneous. Such orders or judgments are only authorized when predicated on matter of record, or some entry or memorandummade by or under the authority of the Court. Nor would the dismissal have been warranted unless it was satisfactorily shewn to the Court that the plaintiff was a non-resident, and that he or his attorney had received at least sixty day’s notice that security for costs was required; that this suit was in the nature of an appeal from the judgment of a justice, was immaterial. The defendant had the same right to require security for costs a's in any other suit pending in the Circuit or County Courts; but in either ease he must pursue the directions of the Statute. The Court are unanimous in reversing the judgment, and remanding the causé.
Laws of Ala. 350.
Laws of Ala. 456.
Laws of Ala. 455.
Minor's Ala. Rep. 17.