Stillman, Marvin & Hall v. D. C. Dunklin & Co.

PETERS, J. Upon the motion of the defendants in the court below, who are the appellees in this court, this suit, in the circuit court, was dismissed, because the plaintiffs were non-residents of this State, and had failed, to give security for costs, as required by, the statute, before 176 tbe commencement of the action. The proofs submitted on the motion showed that the suit was commenced on March 15, 1868, upon a promissory note made in this State on the 12th day of September, 1860, and became due in six months after date. The original papers in the case were lost or destroyed after the commencement of the suit; and at the fall term, in 1871, of the circuit court, after the issuance and service of the complaint and summons, the plaintiffs moved the court to substitute copies of the original papers in the cause, which had been destroyed, and at the same time the defendants moved to dismiss the action for want of security for costs. The evidence showed that the cause had been regularly continued from term to term up to the date of these motions, and that both parties had appeared, by their attorneys, in the court below, but no pleas had been actually pleaded by the defendants, and that they had appeared for the purpose of making the motion to dismiss, but no motion had really been made before that time. The court below dismissed the suit on the motion thus made, and taxed the plaintiffs with the costs. From this judgment they appeal to this court, and here insist, by way of error, that the failure to make the motion to dismiss at an earlier day in the court below, by the defendants, was a waiver of their right to do so. The statute governing this branch of the. practice of the circuit court uses this language : “All actions commenced by or for the use of a non-resident of this State, must be dismissed, on motion, by the court, unless security for the costs be endorsed on the complaint, or lodged with the clerk, previous to the issuance of the summons; and the costs which have accrued must be taxed against the attorney directing the summons to issue; but in case of attachments, such security may be given to and approved by the officer issuing the attachment, or endorsed with his approval upon the writ of attachment.” — Rev. Code, § 2802, 2937. This is a peremptory command. Its meaning and purpose are perfectly clear from all doubt. The court has nq discretion but to execute it, when called upon to do so 177 in the proper way; that is, on motion duly made in the cause by a party entitled to its benefit. This is such a right as this court will enforce by. mandamus in a proper way. — Ex parte Robbins, 27 Ala. 71. There is no limitation in the words of the statute, defining when this motion shall or shall not be made. There is no rule of common law which supplies this defect. The language of the act is general. In such a case the court has no power to imply a limitation by construction. This would be equivalent to a judicial amendment of the law, which courts are not authorized to make. It is much safest to stand upon the language of the Code and its purpose, which is, that a nonresident plaintiff shall not be permitted to sue in our courts without giving security for the costs “ previous to the issuance of the summons.” A violation of this rule subjects the action to be dismissed “on niotion.” And as this language may cover and does cover the .whole time that the cause is pending in court, from its commencement up to the trial, it leaves all this time for the motion to be made, unless it be waived. — 3 Chitt. Gen. Pr. 54, 55, marg. Here the proofs show that there was no waiver of the right and none intended to be made. The learned judge in the court below so decided, and his judgment is free from error, and must stand. — Harper v. Columbus Factory, 35 Ala. 127. The judgment of the court below is affirmed.