Davis v. You

43 Ala. 691

• Court: Supreme Court of Alabama
• Decided: June 15, 1869
• Status: Published

Opinion

Per Guriam.

Motion was made in the court below by appellants to dismiss this suit, because the appellee, administrator, &c., plaintiff in that court, and a non-resident, had not given security for the costs before the issue of the summons, as required by § 2802 of the Revised Code. The non-residence of the appellee was proved, but he resisted the motion, and claimed that he was not bound to give security for the costs, “ because he brought the suit as administrator of Bradley You, appointed by Wilcox probate court.”

The court overruled the motion, and the appellants excepted, and their bill of exceptions was signed and sealed and made a part of the record, and they have appealed to this court.

Appellee moves to dismiss the appeal. This motion must prevail. The judgment of the court, overruling the motion to dismiss the suit, because security for costs had not been given previous to the issue of the summons, is not such a final judgment within the meaning of § 3485 of the Revised Code, as will sustain an appeal to this court. The section 2802 of the Code, above referred to, makes no exception in favor of such a plaintiff as the appellee, and the courts have no right to make any.

Let the appeal be dismissed at the costs of the appellants.