GARRETT & BIBB vs. TERRY

GARRETT & BIBB vs. TERRY. [application for rehearing after final judgment at law.] 1. Security for costs.—An application for a rehearing after final judgment at law, (Code, § 2408,) by a non-resident defendant, is within the statute (Code, § 2396) requiring security for costs in “ actions commenced by or for the use of a non-resident;” and the giving of a supersedeas bond does not dispense with the necessity for such security. Appeal from the Circuit Court of Lauderdale. Tried before the Hon. Bobert Dougherty. This was an application for a rehearing’, after final judgment at law, under section 2408 of the Code. The application was made by the defendants in the action, who also executed a statutory bond to supersede an execution which had been issued on the judgment. The court dismissed the application, because it appeared that the petitioners, who were shown to be non-residents, had not given security for the costs of the proceeding; to which ruling of the court the petitioners excepted, and which they now assign as error. W. B. Wood, for the appellants. B. W. Walker, and E. A. O’Neal, contra. [MAJORITY — STONE, J.—] STONE, J.— If this proceeding be an action, within the meaning of section 2896 of the Code, our previous decisions require us to hold, that the bond given on suing out the supersedeas is not a security for the costs.—Ex parte Robbins, 29 Ala. 71; Shepherd v. Spriggs, 29 Ala. 673. In Pratt & McKenzie v. Keils & Sylvester, 28 Ala. 390-97, we held, that the petition, in cases like the present, must be regarded as a new action. The “ filing of the petition ” was the commencement of the action; and the failure of the petitioners to give security for the costs, justified the court in dismissing the suit. Judgment of the circuit court affirmed.