Where an action has been commenced in the circuit court, by or for the use of a non-resident, and security for the costs has not been endorsed on the complaint, nor lodged with thAclerlc, previous to the issue of the summons, the defendant has the right to have it dismissed by that court *52on motion. — Code, § 2396 ; Ala. & Tenn. R. R. Co. v. Harris, 25 Ala. R. 232.
When that right is withheld by the refusal of that court to dismiss the action, and no final judgment has been rendered in it, this court may, by mandamus, compel that court to dismiss the action. In such case, mandamus is the only specific legal remedy adequate to enforce that right. — Etheridge v. Hall, 7 Porter’s Rep. 47; Jones, ex parte, 1 Ala. Rep. 15; Gordon v. Longest, 16 Peter’s Rep. 97.
We need not now decide what would be the proper remedy for a denial of that right, where, after its denial, but at the same term and before an application for a mandamus could be made to this court, a final judgment in the action was obtained against the defendant. That question is considered and decided in Gordon v. Longest, supra.
But it is argued that, although the first paragraph of this opinion contains a correct general exposition of the provisions of section 2396 of the Code, and although the present action was commenced in the name of a non-resident, and no security for the costs has been given ; yet it is exempted by section 2136 of the Code from the operation of the provisions of section 2396, because it was commenced and is prosecuted at the instance of a wife who had been deserted by her husband, in his name ; and although he is a non-resident, she is not, and never was. This argument makes it necessary to consider the provisions of section 2136,, which is in the following words:
“ When a husband and father has deserted his family, the wife and mother may prosecute or defend, in his name, any action which he might have prosecuted or defended, and has the same powers and rights he might have had.”
It would be a'sufficient answer to the argument under consideration, to say that he docs not appear to be “ a husband and father,” and that she does not appear to be “ the wife and mother.” But, independent of this, there is another satisfactory answer : Section 2136 does not give her the right to prosecute in his name an action which he could not have prosecuted ; nor does it give her greater powers and rights than “ he” had. We must, then, put her out of view, until we settle the question,, whether he can prosecute the present action, *53under the facts disclosed by the record. He was a non-resident when the action was commenced, and no security for the costs was given before the issue of the summons. ■ Upon these facts, the defendant made a motion to dismiss the action ; and section 2396 of the Code declares, that upon such facts and such a motion, the action must be dismissed. We must stand upon the plain words of that section, and hold, that the husband cannot, after such motion and proof, prosecute the action ; and, therefore, that the wife, in his name, cannot prosecute it.
We shall, therefore, order a rule to issue to the presiding judge of the circuit court of Bibb county, to show cause why a mandamus should not issue to compel that court .to dismiss the action.