Lavange v. Burke
Supreme Court of Alabama
Appeal fom the Circuit Court of Montgomery. Tried before the Hon. James Q. Smith. This action was brought by the appellant, and was commenced on the 21st November, 1871. At the June term, 1872, after pleas in bar had been filed, yith a replication and demurrer, the court dismissed the suit, on motion, because the plaintiff was a non-resident, and had failed to give security for the costs; and this judgment, to which an exception was reserved by the plaintiff, is now assigned…
Read the full summary
Appeal fom the Circuit Court of Montgomery. Tried before the Hon. James Q. Smith. This action was brought by the appellant, and was commenced on the 21st November, 1871. At the June term, 1872, after pleas in bar had been filed, yith a replication and demurrer, the court dismissed the suit, on motion, because the plaintiff was a non-resident, and had failed to give security for the costs; and this judgment, to which an exception was reserved by the plaintiff, is now assigned as error.
1Opinion of the CourtPeters, C. J.
There is but one question in this case. That is this: Did the appellees in the court below waive their right to have this suit dismissed, for want of security for costs, before the motion to dismiss was made ? It appears that Mrs. Lavange, the plaintiff below, was a non-resident at the time this suit was commenced. She failed to give security for the costs. This failure subjected her suit to dismissal on motion in the court below. Rev. Code, § 2802, and cases there cited in note 1. But this right of dismissal may be waived. Weeks v. Napier, 33 Ala. 568. In Ex parte Robbins, the court say, in…
2Cases cited3 opinions
- Ex parte RobbinsSupreme Court of Alabama · 1856
- Alabama & Tennessee River Railroad v. HarrisSupreme Court of Alabama · 1854
- Weeks v. NapierSupreme Court of Alabama · 1859
3Cited by4 opinions
- Poa v. RiceHawaii Supreme Court · 1921
- Lee v. StateSupreme Court of Alabama · 1897
- Shuttleworth v. DunlopNew Jersey Court of Chancery · 1881
- Swan v. WrightU.S. Circuit Court for the District of Southern Alabama · 1879