
    WEEKS vs. NAPIER.
    [GARNISHMENT ON JUDGMENT.]
    1. Waiver of security for costs.—If a garnishee answers, joins in the issue contesting his answer, and reserves exceptions to the rulings of the court on the'trial of the issue, he cannot move to dismiss the proceeding, at a subsequent term, for want of security for costs on the part of the plaintiff, who was a non-resident.
    Appeal from the Circuit Court of Marengo.
    Tried before the Hon. C. W. Rapier.
    The appellant in this case, having obtained a.judgment against one Ellis, summoned the appellee, by process of garnishment, as the debtor of Ellis. The garnishee appeared, and filed an answer, wbicb, at tbe fall term, 1856, was stricken from tbe files on motion of tbe plaintiff1; and a judgment nisi by default was then rendered against him. At tbe ensuing term, tbe judgment nisi was- set aside, on tbe motion of tbe garnishee, and be was examined orally in open court as to his indebtedness to Ellis. Tbe plaintiff' contested tbe correctness of this answer, and tendered an issue on several specifications of its incorrectness. Tbe garnishee objected to tbe sufficiency of these specifications, and excepted to tbe overruling of bis objections; and he reserved several other exceptions to tbe rulings of tbe court in tbe formation of the issue joined on bis answer. At tbe fall term, 1857, on motion of tbe garnishee, tbe court dismissed tbe garnishment proceeding, because it appeared that tbe plaintiff1, who was admitted to be a non-resident, bad not given security for the costs when tbe garnishment was sued out; to wbicb tbe plaintiff excepted, and wbicb be now assigns as error.
    Lomax & Prince, for tbe appellant.
    I. W. Garrott, contra.
    
   STONE, J.—

Tbe right of a defendant to dismiss, for want of security for costs, is a right which be, so far as be is concerned, may waive. He will not be permitted to deal with tbe case as one rightly in court; continue, or contribute to tbe continuation of tbe litigation; and, after heavy costs have been incurred, or, perhaps, after be makes tbe discovery that bis defense will be unavailing, then for tbe first time raise tbe objection, that he bad been improperly sued, without security for costs; and for this'omission have tbe cause repudiated. Such practice would work tbe grossest injustice.

In tbe present case, tbe garnishee submitted to tbe jurisdiction of the court, by answering-; excepte.d to tbe action of tbe court in several particulars; made up an issue on tbe truth of bis answer; and, at a subsequent term, moved to dismiss, because tbe plaintiff was a nonresident, and had not given security for costs. Tbe motion should have been overruled.—See Thompson v. Lea, 28 Ala. 453; Ex parte Robbins, 29 Ala. 71.

Judgment of the circuit court reversed, and cause remanded.  