Thompson v. Miller , 2 Stew. 470 ( 1830 )

By JUDGE SAFFOLD.

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^a that all suits commenced by non-residents, at any time during such non-residence, shall be dismissed, unless security be given to the clerk within sixty days after notice shall have been given to the plaintiff or his attorney, &c. A subsequent statute ^b extends the same right to cases, in which the plaintiff shall remove out of the State pending the suit. And another act ^c provides, that in case of non-resident plaintiffs, the attorney who bas directed the process to issue, may, at any time, pending the suit, be ruled to give security for the costs, on motion to the Court; and if-fte fail, that the suit shall be dismissed, and an execution may issue against the attorney for tbe costs.

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 decision of this Court in the case of J. & J. Read v. Carson, ^a was doubtless correct; that notwithstanding an or-¿[er ^ac¡ been ma(je at a previous term requiring the plaintiff to give security for costs by the next term, or the suit would be dismissed, there was no error in the failure of the Court to enter the dismissal; for there it did not appear for wha(; cause the security was required, nor that any subsequent application was made for the dismissal. So much of the reasoning employed on that occasion, as alludes to the necessity of proof of the residence of the defendant within the State, was immaterial to the result; and unless used with exclusive reference to motions against the plaintiff’s attorney, is unsustained by the law.

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.

a Laws of Ala. 350.

b Laws of Ala. 456.

c Laws of Ala. 455.

a Minor's Ala. Rep. 17.