Ex parte Jones , 83 Ala. 587 ( 1887 )

SOMEBYILLE, J.

— The application is for a rule nisi against the judge of the third judicial circuit,-to show cause why a mandamus should not issue to compel the dismissal of a pending suit for failure of a non-resident plaintiff to give security for costs by the first day of the term.

We do not decide whether the petitioner would, or would not, have an adequate remedy by appeal, taken from the final judgment of the Circuit Court, on exception properly reserved, such as ordinarily precludes a resort to the remedy by mandamus j but will concede for the purpose of this case, that the appropriate remedy for revising the action of the Circuit Court is by mandamus.

The court had made an order, at the Spring term, 1887, allowing a non-resident plaintiff until the first day of the ensuing Fall term, within which to give security for costs. When this day arrived, the judge, in effect, extended the time, by continuing the cause, against the petitioner’s objection, and on the third day of the term, the proper security was given.

This action of the judge was, in our opinion, authorized by the statute, which provides that suits at law, or in equity, commenced by or for the use of a non-resident of this State, must be dismissed, if security for costs, approved by the clerk or register, is not given when the suit is commenced, “or within such time thereafter as the court may direcV’ Code, 1886, §2858 ; Acts, 1884-85, p. 137. The time within which the security is to be given, is here made to rest in the sound discretion of the presiding judge. His once fixing the time did not exhaust the exercise of this discretion. He had the same right to extend it, as he did to fix it in the first instance. The purpose of the law is to require good and sufficient security for costs before the commencement of tbe litigation, by wbiob tbe greater portion of sucb costs would be incurred; and herein consists the difference between the old statute, as found in the. Code of 1876, and the amendatory statute of February 17th, 188’4, as found in the new Code of 1886. — Code, 1876, §§ 3149, 3772; Code, 1886, §2858, and cases cited in note.

The application for the rule nisi is denied.