Whitaker v. Sanford

CHILTON, J. Several decisions have been made by this court, construing the statute upon which this motion is predicated. Dig. 316, <§> 26. In Lyons v. Long, 6 Ala. Rep. 103, it was held, that the object of the legislature in requiring security for cost to be given in sixty days, was to prevent surprise at the trial, and that it was allowable to give security any time at or before the trial. That if the defendant was taken by surprise, by the plaintiff’s giving the security, when the cause was called for trial, the court, upon being certified of the fact, would prevent any prejudice to him by giving him a continuance of the cause. The same point came again before this court in Reese v. Billing, 9 Ala. Rep. 263, where it is held, that an order made at a previous term of the circuit court, setting aside a non-suit, upon condition that the plaintiff should give security for the cost, “ by the next term of the court, on the cause dismissed,” &c. should be so construed as to permit the party to give the security at the call of the cause for trial. These cases, which we regard as properly expounding the statute, are decisive of this case. Let the judgment be reversed, and the cause remanded.