Read v. Carson , 1 Minor 17 ( 1820 )

BY the Court

From the Record it appears that the Court below, before the trial term, made an order requiring the plaintiff then to give security for costs by the úext term, or the suit would be dismissed ; the Record does not shew the facts on which this' order was predicated, or any application to dismiss pursuant to it. Judgment appears to have been rendered on the merits.

It is assigned as Error that the suit was- not dismissed pursuant to the order above méntioned. The plaintiffs in-Error relied on two sections of the Statutes which appear to have been passed on the same day. Laws of Ala. p. 350, s. 9—p. 455, s. 9, Acts of 1807. The Statutes authorize the Court, if certain facts appeal’, to cause a suit to be dismissed. It is a summary mode of proceeding, and enough should appear on the Record to shew the jurisdiction and authority of the Court under the Statute. It should appear that the plaintiff resides without and the'defendant within the State. Then by the Statute first cited, 60 days’ notice to the plaintiff or his attorney is required. The Record here shews none of these matters. From all that appears, the Court below was not bound or authorized to dismiss the suit; nor does it appear that the application to dismiss was then made.

Let the judgment be affirmed;

Coke’s Rep. 267, 365.