Ex parte Bradshaw

SOMERVILLE, J. In the case of L. W. Phillips v. Caldwell Bradshaw, pending in the city court of Birmingham, the defendant filed his motion to- require the plaintiff, a non-resident, to give security for the costs of suit; and on December 24, 1910, the trial judge granted an order, duly entered on the motion docket, as follows : “December 24, 1910. Ordered that plaintiff give security for costs in above-styled cause within thirty days from this date or cause shall stand dismissed. C. C. Nesmith, Judge.” On January 23,1911 — the thirtieth-day of the period prescribed — plaintiff’s attorney appeared before the court and by verbal motion asked for an extension of the time for giving such security. This motion was held under consideration by the court until January 25, 1911, at which time plaintiff’s attorney — 246 — again appeared, and the court granted further time by an order entered on the docket as follows: “January _ 25, 1911. It is ordered that time within which security for costs may be given by plaintiff be and hereby is extended to February 8, 1911. C. C. Nesmith, Judge.” On February 7, 1911, the time was again extended by a similar order to February 16, 1911, and on February 13, 1911, plaintiff filed his bond securing the costs, which was duly approved by the clerk of the court. In the meantime, on February 6, 1911, the defendant filed a motion to dismiss the suit and strike the cause from the docket. This motion was heard by the court and by it overruled on February 25,1911. On this state of facts, the defendant seeks by mandamus to compel the trial judge to strike the said cause from the docket of the ■city court of Birmingham. The theory of the petitioner is that, the trial court having fixed the time within which plaintiff should give the security, and that time having fully elapsed without the making or entry of any order by the court extending the time for such action, the discretion of the court was exhausted, and thereafter it could grant no further extension to plaintiff. As we understand from the brief and argument of petitioner’s counsel, it is not contended that the provision inserted in the order of December 24th, that in case of default by plaintiff “the cause shall stand dismissed,” operated ipso facto to effect the dismissal. And we think, on both principle and authority, it would not so operate. — Whittaker v. Sanford, 13 Ala. 522; Springfield Co. v. Construction Co., 49 Ohio St. 681, 32 N. E. 961; Ex parte McLendon, 33 Ala. 276. .Our statutes requiring non-resident plaintiffs to give security for costs, beginning with the territorial act of 1807, have differed greatly in language, purpose, and ■effect, and it becomes necessary to briefly review them — 247 — as indicative in some degree of the purpose and meaning of the present statute (section 3687, Code 1907), which hve are iioav called upon to interpret and apply to the case before us. The act of 1807, as found in Toulmin’s Digest, p. 350, and in Clay’s Digest, p. 316, provided that suits should be dismissed for failure to giAe the security Avithin 60 days after notice of requirement to do so. As interpreted by this court, the time thus prescribed AAas held to b.e not mandatory,' and the plaintiff had a right to offer and give the security at any time before actual dismissal, and even Avken the case Avas called for trial; and dismissal in the case of such an offer Avas erroneous.— Whittaker v. Sanford, 13 Ala. 522. This law no doubt proved inefficient, and there Avas placed in the Code of 1852 (as section 2396) a provision that such suits must be dismissed on motion unless security for costs was indorsed on the complaint, or lodged Avith the clerk, previous to the issue of the sum•mons. This statute Avas held to be mandatory, and its requirements a condition precedent; and the plaintiff’s failure to conform to its requirements demanded the dismissal of his suit by the trial court on motion therefor. And if the court failed on motion to execute the sentence of dismissal denounced and perfected by the statute, it could be compelled thereto by Avrit of mandamus at the petition of an interested party. — Ex parte Cole, 28 Ala. 50; Ex parte Robbins, 29 Ala. 71; First National Bank of Anniston v. Cheney, 120 Ala. 122, 23 South. 733. This laAv remained in force until repealed by the act of February 17,1885, (Sess. Acts 1884-85, p. 137), which provides for dismissal as formerly, “or unless security be furnished as required by the court ón motion therefor.” This act as codified in section 2858'of the Code — 248 — of 1886, and brought down as section 3687 of the Code of 3 907, requires dismissal on motion if the security “be not given by such non-resident when the suit is commenced, or within such time thereafter as the court may direct.” Under this present statute it has been held by this court that the plaintiff’s failure to give the security as prescribed requires the dismissal of the suit, and that the trial court may be compelled thereto by writ of mandamus at the petition of the defendant. — First National Bank v. Cheney, 120 Ala. 117, 23 South. 733; Ex parte L. & N. R. R. Co., 124 Ala. 547, 27 South. 239; Ex parte Smith, 168 Ala. 179, 52 South. 895. It has also been held that it gives to the court a discretionary power to prescribe the time within which the security should be given, that once fixing the time does not exhaust this discretion, and that the court has the same right to extend the time thus prescribed as it had to fix it in the first instance. — Ex parte Jones, 83 Ala. 587, 3 South. 811. Looking to the history and purpose of the statute, and especially to the office and operation of its immediate progenitor (section 2396 of the Code of 1852), we can discover in the additional provision ingrafted on the old law no other legislative purpose than to merely allow the trial court, in its sound discretion, to substitute for the former condition precedent to filing the suit a new condition to its further maintenance — but none the less a condition precedent. And we are clear in the conviction that the plaintiff’s failure to give the security within the terms of the order of the court, thus substituted by it for statutory condition, has exactly the same effect as had under the prior statute his failure to give the security previous to the issue of'the summons. We are unable to assent to the suggestion o'f — 249 — counsel for respondent that the statement in Bank v. Cheney, 120 Ala. 122, 23 South. 733, that “the present statute was intended to restore the practice prevailing-under the statute prior to the Code of 1852,” had any application other than to the practice which permitted the motion to be made after continuance or the filing of defensive pleas — a practice not allowed under the Code of 1852. This was the point under consideration, and to it the statement must be referred and limited. We now come to consider the precise questions presented by this petition, viz., whether the extension of plaintiff’s time for giving the security, as originally prescribed by the order of December 24, 1911, could be granted only by an order made before the 30 days had expired; any subsequent order being functus officio. And, if it must have been so made, whether such order must be evidenced by the usual written memorial, i. e., by an entry upon the records of the court, or hy a writing duly filed; or whether, upon the verbal application of the plaintiff, made before the expiration of the 30 days, the court may carry the matter in the breast Of the judge beyond the allotted period, without the entry of any order expressly or impliedly extending the plaintiff’s time, and then at a later day enter an appropriate order of extension which shall be of the same effect as if duly entered before the expiration of the 30-day period. We find no difficulty in reaching' the conclusions.: (1) That any attempt of the trial court to extend the period once prescribed, by action taken after its expiration, is unauthorized, null, and void. — Ex parte Jones, 83 Ala. 587, 3 South. 811; Kimball v. Penny, 117 Ala. 245, 22 South. 899; Morris v. Brannen, 103 Ala. 602, 15 South. 865; Rossen v. State, 92 Ala. 76, 9 South. 357; Bass Furnace Company v. Glasscock, 86 Ala. 244, 6 South. 430. (2) That the order of extension, like the — 250 — original order, must be the act of the court as distinguished from the personal act of the judge, and as such must be in writing, signed by the judge, and filed or entered of record, unless made in open court; and even then it can be evidenced only by the notes or minutes of the court as are other interlocutory orders thus made. This results from the very nature of courts, which speak only through their records. As said by Mr. Freeman: “AH courts and all tribunals possessing judicial functions are required by the written or unwritten law, and often by both, to reduce their decisions to writing in some book or record kept for that purpose. The requirement is believed to be of universal application.”— 1 Freeman on Judgments (4th Ed.) § 37; Speed v. Cocke, Adm’r, 57 Ala. 209, 216, 217. We note in passing that it has been once held by this court that an order continuing the cause, entered within the period first prescribed for the giving of the security, keeps alive the discretion and power of the court to grant a further extension of time; such order being in itself, by necessary implication, a general extension.— Ex parte Jones, 83 Ala. 587, 3 South. 811. We recognize this case as'authority for the proposition. that the order of extension need not expressly and specifically extend the period already prescribed, but may have that effect if of such a character as to necessarily imply an extension. Applying the principles and conclusions above enunciated to the facts of the present case as .shown by the answer of the learned trial judge, we are unable to escape the final conclusion that the mere application of the plaintiff for an extension of the 30-day period previously granted him for giving the required security for costs, though made within that period, there being no order made or entered by the trial judge until after that — 251 — period liad expired, could not by any subsequent granting order keep alive or resuscitate the expired discretion of the court; that the mere mental purpose of the judge to entertain the application and pass upon it at a future day is not sufficient to avoid the forfeit; and that after this uninterrupted lapse is complete there remains in the trial judge no further discretion, but it becomes his duty, on motion of the defendant, to execute the sentence of the statute according to its mandatory terms. This, we conceive, after thorough consideration, to be the true meaning and intent of the statute, which it is our duty to declare. We need not now determine whether, if the security were in fact filed before the defendant interposed his motion to dismiss the cause, the motion would be thereby rendered unavailing; nor what delay or other conduct on the part of the defendant would operate as a waiver of his right to a dismissal — questions not presented by the record. Let the peremptory writ issue as prayed for in the petition. Simpson, Anderson, McClellan, and Mayfield, JJ., concur. S'ayre, J., dissents.