Ex parte Bush

29 Ala. 50

• Court: Supreme Court of Alabama
• Decided: June 15, 1856
• Status: Published

Opinion

WALKEB, J.

Section 2396 of the Code does not authorize the dismissal of a suit, for want of security for costs, notwithstanding the nominal plaintiff may be a non-resident, where the summons and complaint show that the action is brought for the use of another, unless the latter be a non-resident of the State. — Lewis v. Lewis, 25 Ala. 816. It can make no difference, that the complaint shows a cause of action, for which sections 2129 and 2130 of the Code do not authorize suit in the name of him having the legal title, for the use of the beneficiary ; because, if the error as to the parties complaining is fatal to the action, it is available on demurrer ; and because section 2383 of the Code subjects the beneficiary to a judgment for costs, whenever judgment is rendered against the nominal plaintiff, without regard to the character of the question which may terminate the suit. Here there is a party on the record, resident in the State, who is liable to a judgment for costs. In such a case, the statute does not contemplate the giving of’security for costs, or require a dismissal of the suit for want of such security. The petition for mandamus is refused, at the costs of the petitioner.