Ex parte Abbams

PETEBS, J. This is an application for a mandámus¡ by Hannah Abrams, against the judge of the eleventh judicial circuit, sitting in and for the county of Butler. The facts set forth in the petition and the bill of exception, which is made a part of the petition, are briefly these; The petitioner, Mrs. Abrams, sued Joseph E. Abrams, as surviving partner of the firm of J. E. & H. S. Abrams, in an action of debt, to recover five thousand dollars, money [152] loaned by the plaintiff to said H. S. Abrams for the use of said partnership. The action was brought to the spring term, 1869, of the circuit court of said county of Butler. And the suit, thus brought, came on to be heard at the fall term, 1871, of said circuit court. The plaintiff, Mrs. Abrams, was not then ready for trial; and on her motion the cause was continued. The following is a copy of the order of continuance thus granted — that is to say: “Game the parties by'their attorneys, and on motion of the plaintiff for a continuance of this cause, it is ordered by the court, that this cause be continued by the plaintiff on payment of the costs in this behalf expended in ninety days.” The plaintiff failed to pay the costs as required by this order in the time therein prescribed. But she brought the money to pay th'e costs into court at the next term to which the cause had been continued, before the cause was called for trial; and on the call of the cause for trial she was ready in court with the money to pay the costs, and tendered the same for that purpose and declared herself ready and willing to pay the same. The court refused to permit the money to pay the costs thus tendered to be paid into court for that purpose; and, on motion of the defendant, “ struck the cause from the docket and adjudged the cause to be at an end.” To this the plaintiff objected, and reserved the objection by proper bill of exceptions. The order above quoted is clearly a continuance of the cause until the next term of the court in due course, with directions that plaintiff shall pay the costs in ninety days after the order for the continuance was allowed. But there was no order that if the costs were not paid in the time limited, then the cause should be dismissed. At the next term of the court after the continuance, the cause was still pending. It had not been dismissed, nor had the plaintiff been advised that it would be dismissed on a failure to pay the costs in ninety days. The words, “on payment of the costs in this behalf expended,” do not necessarily imply a condition. They only signify the terms on which the con [153] tinuance was granted, and not a condition which defeats the continuance if not complied with; or which turns the plaintiff out of court. The order makes the plaintiff liable for the costs up to the continuance, and exonerates the defendant, so far as this can be done, from their payment, whatever might be the result of the suit. The cause, then, was not out of court at the commencement of the term next succeeding the grant of the order of continuance, nor had the plaintiff, by the terms of the order, forfeited her right to remain in court up to that time. But the learned judge in the court below seems to have thought otherwise. He mistook the purport of the order, in construing it as a dismissal of the suit upon a failure to pay the costs in ninety days. Such a construction -is inadmissible. The striking the cause from the docket was such an invasion of the plaintiff’s right to remain in court, as is unauthorized by law. The cause should have been retained upon the docket, and the plaintiff should have been permitted to pay the costs, as she proposed to do. The principles settled in the case of Ex parte Lowe, (20 Ala. 330,) seem fully to justify the allowance of the remedy by mandamus in this case. And the issuance of a rule nisi having been waived by agreement of counsel filed in this cause, a peremptory mandamus will be issued in conformity with the prayer of the applicant’s petition. Costs will be reserved until the com* ing in of the return to the mandamus.