104 Ala. 548 | Ala. | 1894
If the consolidated cause of Torrey v. Bishop and Forbes was not at issue at the Spring tei’m, 1893 of the Baldwin circuit court, that court was without authority to impose terms upon the plaintiff as a condition to a continuance, and the judgment of dismissal entered at the succeeding term for the failure of the plaintiff to comply with the terms thus imposed was erroneous. Whether the cause was then at issue turns upon the inquiry
The case at bar falls clearly within this principle. The decedent in his lifetime held lands to which the plaintiff’s intestate claimed title. Upon his death the possession thereof was taken by his administrator. If the decedent had no title to the land, his holding was tortious,' and the possession of the representative was likewise a tort committed by the person who is in the office of administrator ; his possession, if wrongful, is his individual tort; and so far from an adjudication to that effect being vio
The case was, therefore, at issue when the order of continuance, at plaintiff’s instance, was made upon the condition that he pay all costs of that term before the next term of the court. It was clearly within the discretion of the court to impose these terms and to dismiss the case upon the failure of the plaintiff to comply with them; and we will not disturb the exercise of that discretion.— 16th Rule of Practice, Code, p. 808; Waller v. Sultzbacher et al., 38 Ala. 318; Maund v.Loeb & Bro., 87 Ala. 374; Rhea v. Tucker, 56 Ala. 450; Dunlap v. Horton, 49 Ala. 412.
Whether the court erred in granting a’severance of the case against Bishop from the case against Forbes’ representative and heir, after those cases had been consolidated under, and upon the terms shown in, the written agreement of the parties, is not material to the decision of the case as now presented. That ruling had no bearing upon the court’s power to impose terms for the continuance moved by the plaintiff or upon its power to dismiss the case upon non-compliance with those terms, and if erroneous it was without injury to the plaintiff.
There was a motion by plaintiff to retax the costs which he was required to pay by the order of May 8, 1893, and certain facts are stated in the motion going, or intended, to show that there should be the retaxation moved for. But it will suffice to say in this connection, that there is no evidence in this record of the truth of those alleged facts, nor does it appear that any evidence to that effect was adduced in the primary court. We, of course, can not affirm on this state of case that the circuit court erred in denying that motion.
The judgment of the circuit court is affirmed.