Rhodes v. Moro Phillips Alexander H. Phillips

• Decision Date: 31 December 1847
• Citation: 2 Tex. 162
• Parties: WILLIAM H. RHODES v. MORO PHILLIPS ALEXANDER H. PHILLIPS v. JOSEPH A. SWETT
• Court: Texas Supreme Court

2 Tex. 162

WILLIAM H. RHODES

v.MORO PHILLIPS

ALEXANDER H. PHILLIPS

v.JOSEPH A. SWETT

Supreme Court of Texas.

December Term, 1847.

Appeal from Galveston County.

Where a party to a suit was ordered to give security for costs within the time prescribed by law, to wit, within sixty days: held, that the giving of such security before the suit was called, and before the commencement of the term of the court at which it was called, was a sufficient compliance with the order, notwithstanding the prescribed time had then elapsed.

In each of the above entitled causes the plaintiff had been ruled to give security for costs.

The security was given before there was any order made for the dismissal of the causes for the want of it; and when the motion was made to dismiss, the plaintiff in each case offered to prove that it had been the uniform practice of the court to allow security for costs to be filed at any time before the order for dismissal was entered, and that he had been misled by such uniform practice; but the court refused to hear the testimony and dismissed the causes. The plaintiffs thereupon appealed.

Webb, for appellants.

Franklin, for appellees.

Mr. Justice LIPSCOMB delivered the opinion of the court, Mr. Chief Justice HEMPHILL not sitting.

These two causes depend on precisely the same grounds. An order had been entered for security for the costs; the security was not given within sixty days from the order, but was given before the suit was called, and before the commencement of the term of the court at which it was called and dismissed for not strictly complying with the order. We believe that it was satisfactorily shown that the custom had been uniform in the court prior to these cases to consider it a sufficient compliance with such orders, if the security was given before the case was called. This would have authorized the court to have received the security, if it had not been given previous to the call, if it had been then tendered. The case of Houston against the executors of Roberts, 1 Tex. 523, is decisive of these cases. We believe the judge erred in dismissing the cases. The judgment in each case is reversed, and cause remanded.