Weeks v. Napier
Supreme Court of Alabama
Appeal from the Circuit Court of Marengo. Tried before the Hon. C. W. Rapier. The appellant in this case, having obtained a.judgment against one Ellis, summoned the appellee, by process of garnishment, as the debtor of Ellis. The garnishee appeared, and filed an answer, wbicb, at tbe fall term, 1856, was stricken from tbe files on motion of tbe plaintiff1; and a judgment nisi by default was then rendered against him.
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Appeal from the Circuit Court of Marengo. Tried before the Hon. C. W. Rapier. The appellant in this case, having obtained a.judgment against one Ellis, summoned the appellee, by process of garnishment, as the debtor of Ellis. The garnishee appeared, and filed an answer, wbicb, at tbe fall term, 1856, was stricken from tbe files on motion of tbe plaintiff1; and a judgment nisi by default was then rendered against him. At tbe ensuing term, tbe judgment nisi was- set aside, on tbe motion of tbe garnishee, and be was examined orally in open court as to his indebtedness to Ellis. Tbe plaintiff'…
1Opinion of the Court
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.
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2Cases cited2 opinions
- Thompson v. LeaSupreme Court of Alabama · 1856
- Ex parte RobbinsSupreme Court of Alabama · 1856
3Cited by6 opinions
- Capital City Water Co. v. State ex rel. MacdonaldSupreme Court of Alabama · 1894
- Heflin v. Rock Mills Manufacturing & Lumber Co.Supreme Court of Alabama · 1877
- Consumers' Roofing Co. v. LittlejohnSupreme Court of Alabama · 1933
- Lavange v. BurkeSupreme Court of Alabama · 1873
- Gerace v. BentleySuperior Court of The Virgin Islands · 2015
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