Heflin v. Rock Mills Manufacturing & Lumber Co.

STONE, J. 1. It is very questionable if we did not, at an. early day, go too far in dismissing suits, for a failure to give security for costs. — See Ex parte Cole, 28 Ala. 50; Ex parte Robbins, 29 Ala. 71; Ex parte Morgan, 30 Ala. 51. We then determined to carry the principle no farther, and hence we held, if defendants appeared and pleaded, or otherwise entered into defense, without moving to dismiss for want of security for costs, this was a waiver of the objection, and an admission that the defendant was rightly in court.— Weeks v. Napier, 33 Ala. 568; Duncan v. Richardson, 34 Ala. 117; Thompson v. Clopton, 31 Ala. 2. The present case comes precisely within this rule. The defendant to the petition appeared before the circuit judge, and moved to dismiss the petition on several grounds, none of which raised the question of a want of security for costs. His motion was overruled, and he thereupon asked leave to demur to the petition on the same grounds. These all went to the sufficiency of the petition. Failing in both these motions, he applied to this court for a mandamus to compel the Circuit Court to dismiss the petition, on the said grounds he had urged before the circuit judge. We denied the motion. After this, the motion was made in the Circuit Court to dismiss for want of security for costs. The motion was rightly [615] overruled. The case of Davis Avenue Railroad Company v. Mallon, was unlike this in principle. — 57 Ala. 168. We adhere to our former ruling. — Ex parte Heflin, 54 Ala. 95. 8. The present suit was commenced bj petition for rehearing under section 3161 of the Code of 1876. There is no final judgment in that suit. The final judgment in the original cause, to obtain a rehearing of which the present proceedings were instituted, does not aid this appeal, which is taken from an interlocutory ruling in the last suit. An appeal from such ruling does not lie to this court. Mandamus is the remedy, if the ruling was incorrect. — Ex parte Cole, Ex parte Morgan, Ex parte Robbins, supra; Steamboat Empire v. Ala. Coal Mining Co. 29 Ala. 698; Davis v. You, 43 Ala. 691. Appeal dismissed.