Weeks v. Napier

STONE, J.— Tbe right of a defendant to dismiss, for want of security for costs, is a right which be, so far as be is concerned, may waive. He will not be permitted to deal with tbe case as one rightly in court; continue, or contribute to tbe continuation of tbe litigation; and, after heavy costs have been incurred, or, perhaps, after be makes tbe discovery that bis defense will be unavailing, then for tbe first time raise tbe objection, that he bad been improperly sued, without security for costs; and for this'omission have tbe cause repudiated. Such practice would work tbe grossest injustice. In tbe present case, tbe garnishee submitted to tbe jurisdiction of the court, by answering-; excepte.d to tbe action of tbe court in several particulars; made up an issue on tbe truth of bis answer; and, at a subsequent term, moved to dismiss, because tbe plaintiff was a nonresident, and had not given security for costs. Tbe mo [570] tion should have been overruled.—See Thompson v. Lea, 28 Ala. 453; Ex parte Robbins, 29 Ala. 71. Judgment of the circuit court reversed, and cause remanded.