Ex parte Canada Life Assur. Co.

• Decision Date: 26 January 1928
• Docket Number: 6 Div. 40
• Parties: Ex parte CANADA LIFE ASSUR. CO. v. CANADA LIFE ASSUR. CO. CHOATE
• Court: Alabama Supreme Court

115 So. 244

217 Ala. 210

Ex parte CANADA LIFE ASSUR. CO.

CHOATE v. CANADA LIFE ASSUR. CO.

6 Div. 40

Supreme Court of Alabama

January 26, 1928

Original petition by the Canada Life Assurance Company for mandamus to Richard V. Evans, Judge of the Circuit Court of Jefferson County, to compel respondent to dismiss the suit of Joseph C Choate against petitioner. Writ denied.

Anderson C.J., dissenting.

Martin Thompson, Foster & Turner, of Birmingham, for appellant.

Harrison Kendrick, of Birmingham, for appellee.

ANDERSON C.J.

Section 7222, which is new to the Code of 1923, reads as follows:

"Whenever a suit has been dismissed or nonsuit taken, or when there has been one judgment in favor of the defendant in an action of ejectment, at the time of the filing of another suit, involving the same claim, cause of action or land, between the same parties or their privies, the party filing the new suit must also pay into court all costs incurred in the former suit, and, upon his failure to do so, the judge, upon motion of the defendant or any other party in interest shall dismiss said action; but upon good cause shown, the judge may permit the party to pay such costs within ten days and proceed with the suit."

It must be observed that this provision requires the payment of the cost in the former suit upon filing the second suit, yet it does not give the court the right to dismiss the second suit ex mero motu as for said failure, but only that it shall be done upon motion of the defendant or any other party in interest, but the judge may upon "good cause shown" permit the party to pay such cost within 10 days and proceed with the suit.

Here the cost of the former suit was not paid when the second was filed, and the defendant moved to dismiss the second suit for said failure. The trial court did not dismiss the suit, but required plaintiff to pay the cost within ten days, and which was promptly done. This section does not give the judge the unbridled right or discretion to permit the payment of the cost within 10 days, but merely authorizes it to be done "upon good cause shown." It may be that what is or is not a good cause is a question largely within the discretion of the trial judge, not unconditional, however, or unrevisable by this court as for an abuse of discretion. Here there was a special finding of the facts, and the question is, Did they show a good cause or excuse for a failure to pay the cost when the second suit was filed? In the first place the financial inability of the plaintiff was not a good cause, as he should have made his financial arrangement before the second suit was filed, nor is ignorance of the law deemed a good excuse for a failure to comply therewith. On the other hand, the proof shows that plaintiff's attorney told him the cost would have to be paid, but did not tell him the second suit would be dismissed if the cost...