Choate v. Canada Life Assur. Co.

Sections 7222 and 7249 of the Code of 1923, are mandatory and require a dismissal on motion of defendant, and refusal to sustain the motion is reviewable by mandamus. Ex parte Bradshaw, 174 Ala. 243, 57 So. 16; Ex parte Robbins, 29 Ala. 71; Ex parte Cole, 28 Ala. 50. See Ala. F. I. Co. v. Williams, 207 Ala. 99, 91 So. 879. On the question of "good cause," see Christensen v. Anderson,24 Tex. Civ. App. 345, 58 S.W. 962; Hubbard v. Yocum, 30 W. Va. 740,5 S.E. 867; Home S. M. Co. v. Floding, 27 W. Va. 540; Ruffner v. Love, 24 W. Va. 181.

Harrison Kendrick, of Birmingham, for appellee.

Counsel discusses the questions raised, citing Cloe v. State ex rel., 209 Ala. 544, 96 So. 704. Section 7222, which is new to the Code of 1923, reads as follows:

"Whenever a suit has been dismissed or nonsuit taken, or when there has been one judgment in favor of the defendant in an action of ejectment, at the time of the filing of another suit, involving the same claim, cause of action or land, between the same parties or their privies, the party filing the new suit must also pay into court all costs incurred in the former suit, and, upon his failure to do so, the judge, upon motion of the defendant or any other party in interest shall dismiss said action; but upon good cause shown, the judge may permit the party to pay such costs within ten days and proceed with the suit."

It must be observed that this provision requires the payment of the cost in the former suit upon filing the second suit, yet it does not give the court the right to dismiss the second suit ex mero motu as for said failure, but only that it shall be done upon motion of the defendant or any other party in interest, but the judge may upon "good cause shown" permit the party to pay such cost within 10 days and proceed with the suit.

Here the cost of the former suit was not paid when the second was filed, and the defendant moved to dismiss the second suit for said failure. The trial court did not dismiss the suit, but required plaintiff to pay the cost within ten days, and which was promptly done. This section does not give the judge the unbridled right or discretion to permit the payment of the cost within 10 days, but merely authorizes it to be done "upon good cause shown." It may be that what is or is not a good cause is a question largely within the discretion of the trial judge, not unconditional, however, or unrevisable by this court as for an abuse of discretion. Here there was a special finding of the facts, and the question is, Did they show a good cause or excuse for a failure to pay the cost when the second suit was filed? In the first place, the financial inability of the plaintiff was not a good cause, as he should have made his financial arrangement before the second suit was filed, nor is ignorance of the law deemed a good excuse for a failure to comply therewith. On the other hand, the proof shows that plaintiff's attorney told him the cost would have to be paid, but did not tell him the second suit would be dismissed if the cost was not paid, but they were chargeable with notice of the law. It also appears that the attorney would have advanced the cost, if requested, just as he did after the motion was made. It therefore seems that plaintiff and his attorney acted through ignorance of the law, or, if not ignorant thereof, they speculated on getting by without paying the cost, unless defendant made a motion to dismiss.

The authorities are not very numerous in defining "good cause," as these words seem to have no fixed meaning, but must depend upon the circumstances of each case determined largely by the sound discretion of the court. Christensen v. Anderson,24 Tex. Civ. App. 345, 58 S.W. 962. There are a few cases somewhat analogous to the one in hand. In the case of Hubbard v. Yocum, 30 W. Va. 740, 5 S.E. 867, it was held that, when a statute gave the right of appeal from a justice within 10 days from the entry of the judgment or thereafter, and, within 90 days upon showing good cause for not having taken the appeal within the 10 days, the fact that the defendant was a nonresident, and did not know that the appeal was required to be taken within 10 days, is not good cause for granting an appeal. The words "good cause" in the statute authorizing appeals after the prescribed time upon showing good cause mean a showing that appellant was prevented from taking his appeal within the time by fraud, surprise, or adventitious circumstances beyond his control as would entitle him to a new trial. Home Machine Co. v. Floding, 27 W. Va. 540.

It must be observed that the latter part of section 7222, making a showing of "good cause" as a condition precedent for further time, is differently worded from other statutes bearing upon similar questions. For instance, section 7249, providing for the dismissal of suits by nonresidents, if security for cost is not given when suit is commenced, says: "Or within such time thereafter as the court may direct," while section 6145 of the Code of 1923 provides: "No appeal shall be dismissed for want of a sufficient appeal bond or bond for the cost of the appeal, if the appellant will give a sufficient bond."

The majority do not agree with the writer, and think, and so hold, that the mandamus must be denied. They are of the opinion that the trial court did not abuse its discretion in holding that good cause was shown. Jagues v. Chandler, Ex'x, 73 N.H. 376,62 A. 713; Sylvester v. Olson, 63 Wn. 285, 115 P. 175.

Mandamus denied.

All the Justices concur, except ANDERSON, C. J., who dissents.