Reese v. Billing , 9 Ala. 263 ( 1846 )

COLLIER, C. J.

In Lyons v. Long, 6 Ala. Rep. 103, an order was made, requiring the plaintiff to give security for costs within sixty days, and in the event of a failure to do so, the suit stand dismissed. It was said that the object of the legislature, in requiring the costs to be secured within sixty days, was in all probability to prevent surprise at the trial, and it .was allowable to give security any time at or before the next calling of the cause. The defendant could not be prejudiced by this indulgence ; for if he had failed to prepare for trial, in consequence of the failure promptly to comply with the order, the Court would doubtless grant him a continuance. So far then as the order in the present case required the plaintiff to secure the payment of costs to be incurred in futuro, if not literally, it was in point of law complied with.

The plaintiff was directed to pay the costs incurred up to the time of setting aside the non-suit, by the next term of the court, and if he failed to do this, it was then ' ordered and considered,” that the non-suit should not be set aside, but * should remain in full force, and execution issue thereupon after the then next term. The effect of the entry was, either to re-instate the cause in court eo instanti it was made,' or else continue the motion for that purpose sub judice until the succeeding term. If the former, then, the cause was reinstated in court, and subject to future action, and the recital in the entry, that it was “ ordered and considered by the court, that the said non-suit shall not be set aside, but shall stand good and valid, and that the defendant recover,” &c., is not restrictive of the power of a court subsequently hold-en. The judgment being set aside, the cause is in fieri, and it is competent to make any order that may be proper, or to vacate one that has been previously made. There is nothing so potent in the terms “by the next term,” &c., as to conflict with this conclusion. It is clearly allowable, consistently with the rules of interpretation, to construe “ by,” to mean “on,” or “at.” In fact, by setting aside the non-suit, on the terms indicated, the cause was necessarily continued, until the succeeding court should declare, by a definitive order, whether the costs were paid, and the condition of the cause.

If the effect of the order was to continue the motion to set aside the non-suit, then it is clear, that at the next term, it was competent for the court to act on it, and to disregard it in toto, or modify it as might be thought best. But we think the cause was re-instated by the order, and it was permissible to pay the costs, not only by the first day of the succeeding term, but at the calling of the cause, any time during the court. The consequence is, that there is no error in the proceedings of the Circuit Court. Its judgment is consequently affirmed.