Jordan v. Jordan

57 So. 436, 175 Ala. 640, 1912 Ala. LEXIS 112

• Court: Supreme Court of Alabama
• Decided: January 18, 1912
• Status: Published

Opinion

ANDERSON, J.

This appeal seems to be prosecuted from the action of the court in failing to sustain the appellant’s motion to require the complainant to pay the costs of the previous suits as a condition precedent to a prosecution of the case at bar, and to the granting of the complainant’s petition for alimony pendente lite, and in ordering a reference to ascertain the amount. None of these orders are appealable. — Brady v. Brady, 144 Ala. 414, 39 South. 237.

The appellant has, however, prayed in the alternative in a motion for the writ of mandamus to be addressed to ilie loAver court requiring it to stay the proceedings until the cost is paid and to sIioav cause avIiv the order allowing alimony should not be vacated, and mandamus is no doubt the proper remedy. — Brady v. Brady, supra; Bradshaw’s Case, 174 Ala. 243, 57 South. 16.

Regardless of the rule as to actions at laAV, it is well settled in equity that when the complainant, as here, has failed in one suit, and brings another against the same party for the same, or Avhat is substantially the same cause of action, tlie court will stay the proceedings in the second until the costs in the former suit are paid. —Street’s Case, 106 Ala. 102, 17 South. 779; Brown v. Brown, 81 Ala. 508, 2 South. 95. Whether or not it is the imperative duty of the court to stay the proceedings and the matter is not therefore discretionary in actions at law we need not decide. In equity, however, the rule has its limitations, and it would seem that the chancery court would have some discretion in the matter, if a proper excuse is shown. — Updike v. Bartles, 13 N. J. Eq. 231. “A court of equity will be governed by the circumstances of each case, and, Avhere there is a valid excuse given for the failure to pay the cost incurred in the former action, it will not compel such payment as a condition of permitting the second to proceed.” — N. P. Co. v. Mertes, 35 Nev. 207, 52 N. W. 1100. In Stebbins v. Grant, 19 Johns. (N. Y.) 196, the court recognized the rule at common laAv, but refused to apply it in equity.

We cannot put the trial court in error for declining to stay the proceedings until the cost in the former suit was paid. The complainant ansAVered the motion under oath, that the former suit Avas dismissed by her Avithout seeing her counsel, upon the solicitation of the respondent, for the sole purpose of effecting a reconciliation; “that, if she dismissed the pending suit, he avouLI provide for her, and give her money to live on, and that they would go back together as man and Avife,” and, after she had dismissed said suit, he flatly refused to carry out his promise. This ansAver Avas sworn to, and Ave are not inclined to put the trial court in error for-proceeding to award the complainant alimony pendente lite without first requiring her to pay the costs of the former suit.

The record shows that the respondent’s counsel had notice of the time and place for the execution of the reference, and. failed to appear. The respondent, having failed to appear before the register or master, could not except to the report, and which said report ivas properly confirmed when read.

Whether or not the former suit was a bar to the present suit, the case not having been disposed of after being set down for the hearing on its merits, or because dismissed at the instance or request of the respondent, we need not decide, for, if it is a bar, a question extremely doubtful, the defense should be properly invoked by a plea, and not bj^ the motion in question.

The appeal is dismissed, and the manudamus must be denied.

All the Justices concur, except Dowdell, 0. J., not sitting.