Ex Parte State Ex Rel. Mobile & N. R.

95 So. 49, 208 Ala. 654, 1922 Ala. LEXIS 379

• Court: Supreme Court of Alabama
• Decided: November 30, 1922
• Docket: 1 Div. 247.
• Status: Published

Opinion

ANDERSON, C. J.

The motion in the court below, as well as the prayer in the iiresent petition, seeks a dismissal of the last action of ejectment because the plaintiff was in effect in contempt of court for noncompliaficewith the order of the circuit court in a former action of ejectment between the same parties or their privies and does not seek a stay of the present action until the payment of the cost in the former or a dismissal upon a failure to pay said cost. It seems to be the petitioner’s contention and theory that the order of dismissal of the former action of ejectment because of the nonpayment of the cost in a former chancery case, whether correctly made 'or not, no appeal having been taken, is conclusive against the plaintiff’s right to maintain the present action of ejectment. This contention is not sound, as the plaintiff is not in contempt, and the former judgment of dismissal merely ended the pend- ins cause, and the plaintiff suffered the only penalty thereby provided—the dismissal of her suit for a failure to pay the cost of the chancery ease—and which cannot be visited upon her in the present case or affect her right to maintain same except perhaps as to the payment of the cost of the former action of ejectment as a condition to proceed upon a proper motion of the defendant. Ex parte Colley, 140 Ala. 193, 37 South. 232.

For the reasons above pointed out the mandamus must be denied, but, as a guide upon the future progress of this cause, it is sufficient to suggest that the defendant is entitled to a stay of the suit until the payment of the cost of the previous action of ejectment or a dismissal for a failure of the plaintiff to do so. Ex parte Shear, 92 Ala. 596, 8 South. 792, 11 L. R. A. 620. The defendant, however, is not entitled to a stay of the present action until the payment of the cost of the chancery case, as the rule has no application where one action was equitable and the other one legal. Johnson v. Amberson, 140 Ala. 342, 37 South. 273. True, the trial court erroneously applied this rule in dismissing the former action of ejectment and which was conclusive, no appeal having been taken, but only upon the parties as to the pending action and not upon the plaintiff’s right to bring the present action, which was in no wise dealt with or attempted to be prohibited in the former order or judgment. Ex parte Colley, 140 Ala. 193, 37 South. 232.

Mandamus denied.

SAYRE, GARDNER, and MILLER, JJ., concur.