
    No. XIX.
    George Huff, Administrator, etc., v. James K. McCreary, Clerk, etc.
    (See .)
    
      Appeal from Austin.
    
    
      
      .—Huff v. McCreary p. 528.
      Plaintiff must have notice of rule for costs, in order to visit upon him the consequences of failure to comply with same. Houston v. Sublett, 1 T., 523; Clute v. Ewing, 21 T., 677, 679; Holshousen v. Hollingsworth, 32 T., 86; Marks v. Fields (T. C. A.), U. R. C., 1895; Frazer v. Moore (T. C. A.), U. R. C., 1902. Entry of rule on judge’s docket is not sufficient notice. Motion should be made and entered on motion docket. Shackelford v. Wallace, 4 T., 239; Marks v. Fields (T. C. A.), U. R. C., 1895. Rule for costs may be entered at any time before final judgment. I. & G. N. Ry. Co. v. Williams, 82 T., 342; Frazer v. Moore (T. C. A.), U. R. C., 1902. May be complied with at any time before case is dismissed. Cooke v. Beasley, 1 T., 591; Rhodes v. Phillips, 2 T., 162; Hayes v. Cage, 2 T., 501; Cooke v. Ross, 46 T., 263; Bateman v. Maddox, 86 T., 553; Posey v. Aiken, 17 T. C. A., 44. After rule has been complied with, plaintiff can not be ruled for additional security without notice and affirmative proof that the security given is insufficient. Houston v. Roberts, 10 T., 348; Holshousen v. Hollingsworth, 32 T., 86. When defective new bond may be given, if no notice is taken of the defect for several terms, court may disregard motion to dismiss. Herndon v. Rice, 21 T., 455. Case dismissed for failure to comply with rule should be reinstated upon a reasonable showing why the rule had not been complied with. Bank v. Hudgeons, 3 T., 9; Shackelford v. Wallace, 4 T., 239; Frazer v. Moore (T. C. A.), U. R. C., 1902. Sickness of plaintiff and his attorney, ground for postponing dismissal. Cook v. Ross, 46 T., 263. Judgment of dismissal for failure to comply with rule may be appealed from. Shackelford v. Wallace, 4 T., 239; Miller v. Holtz, 23 T., 138. Case will not be reversed merely on ground that court erred in dismissing for failure to comply with rule. Cooke v. Ross, 46 T., 263. On dismissal, defendant is entitled to judgment for costs. Anderson v. McKinney, 22 T., 653. Rule for costs does not suspend preparation for trial. Anderson v. McKinney, 22 T., 653. Affidavit of inability to pay or give security, discharges rule for costs. Hickey v. Rhine, 16 T., 576; Hubby v. Harris, 63 T., 456; M. P. Ry. Co. v. Richmond, 73 T., 568. But it does not relieve affiant from liability for costs. McPherson v. Johnson, 69 T., 484; Harby v. Patterson (T. C. A.), U. R. C., 1900. Affidavit may be made by next friend or plaintiff’s attorney, but not by wife. Brooks v. Hicks, 20 T., 666; Crockett v. Maxey, 4 App. C., sec. 292; S. L. S. W. Ry. Co. v. Williams (T. C. A.), U. R. C., 1896. Can not be made before a notary public of another State. Jenks v. Jenks, 47 T., 220; Thames v. Chitwood, 24 T. C. A., 391. If affidavit is defective, the defect should be pointed out by motion to dismiss for insufficiency. It is not defective because it fails to name one of the defendants. Hubby v. Harris, 63 T., 456. Quaere—Can defendant without being joined by clerk contest affidavit? Railway v. Duncan, 10 T. C. A., 479. Refusal of court to sustain contest is immaterial when plaintiff recovers. Railway v. Duncan, 10 T. C. A., 479; Wright v. Solomon (T. C. A.), U. R. C., 1898. Limitations do not run until filing of affidavit. G. C. & S. F. Ry. Co. v. Knott, 14 T. C. A., 158. On appeal by defendant in justice court, plaintiff can not be ruled for costs in county court. Foreman v. Gregory, 17 T., 193; Miller v. Holtz, 23 T., 138; T. & P. Ry. Co. v. Taylor, 2 App. C., sec. 418; T. & P. Ry. Co. v. Cook, 2 App. C., sec. 659; Taylor v. Brewing Assn. (T. C. A.), U. R. C., 1897. Same rule on appeal from probate court to district court. Pierce v. Pierce, 21 T., 469.
    
   OCHILTREE, Justice.

In this case, which was brought up by appeal from the county of Austin, it appears that the plaintiff instituted an action of debt against W. P. Huff and Thomas Barrett, by filing his petition in the office of the defendant, who was the clerk of the District Court of Austin County; that the defendant failed and refused to issue the citation prayed for in the petition as required by law, unless the plaintiff should first pay the cost thereof. At the fall term, 1841, of the district court, the plaintiff filed his motion for a rule against the defendant to show cause why he had not issued the writ of citation prayed for. The clerk answered to the rule, that the papers were duly prepared by him and tendered to the plaintiff upon the payment of costs, or on the plaintiff entering into security therefor. The rule was discharged by the court below. By reference to the act of Congress establishing the jurisdiction and powers of the district court, volume 1, section 17, page 203, it will be seen that when any original process shall issue out of any court in this Republic, the plaintiff at the return of such process, or any time thereafter before final judgment, shall upon the motion of any person interested be ruled to give sufficient security for all costs, etc. The terms of the act gave the clerk no discretion. It was his imperative duty to have issued the citation and on the return of the process, or at any time thereafter, he might have made his motion for security for costs.

The rule should have been granted. It is therefore the unanimous opinion of .the court that the judgment of the court below be reversed and the case remanded.

Reversed and remanded.  