Ex Parte Winn

Supreme Court of Alabama

Ex Parte Winn

147 So. 625, 226 Ala. 447, 1933 Ala. LEXIS 373

CourtSupreme Court of Alabama

DecidedApril 13, 1933

Docket8 Div. 412.

StatusPublished

Cited by5 cases

This text of 147 So. 625 (Ex Parte Winn) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ex Parte Winn, 147 So. 625, 226 Ala. 447, 1933 Ala. LEXIS 373 (Ala. 1933).

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Opinion

GARDNER, Justice.

This petition for mandamus is based upon the theory that a nonresident contestant of a will offered for probate in the courts of this state cannot be required to give security for the costs, and that the provision of our statute (section 7249, Code 1923) for such security in “all suits at law or in equity, commenced by or for the use of a nonresident of this state,” has no application to this character of litigation. But the case of Rainer v. McElroy, 20 Ala. 347, is conclusive against petitioner’s contention.

It is insisted, however, what was there said is dictum, but it would seem the matter •of statutory liability of the surety for the costs lay at the threshold of the ease (Eslava v. Farley, 72 Ala. 214), and the court properly proceeded to a direct determination of that preliminary question.

In respect to the matter here pertinent, the statute there considered is in substance and effect the same as section 7249 of our present Code.

In the Rainer Case, supra, the court referred to the contestants as “actors in the proceeding,” and we are in accord with the conclusion there reached that no sufficient reason has been assigned'why such security for costs should not be required. The fact that in the contest proceedings (section 10625, Code 1923) contestant is called defendant is a mere matter of procedure. He has nevertheless “commenced” the litigation, and is subject to the taxation of costs, should the contest prove unsuccessful. Section 10632, Code 1923. And it is to be noted that section 1634, Code 1852, in force at the time of the rendition of the decision in the Rainer Case, supra, corresponds in all substantial respects with section 10625, Code 1923.

The ruling of the court in Ex parte Louisville & Nashville R. R. Co., 124 Ala. 547, 27 So. 239, that the statute requiring security for costs by a nonresident suitor was not violative of section 13 of our present Constitution (section 14, article 1 of Constitution of 1875), is equally applicable to section 10 of our Constitution, and needs no further discussion.

We conclude that both upon authority and *448 sound reasoning, as well, petitioner is not entitled to relief, and the mandamus will accordingly be here denied.

Writ denied.

ANDERSON, O. J., and BOULDIN and FOSTER, JJ., concur.

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GARDNER, Justice.

This petition for mandamus is based upon the theory that a nonresident contestant of a will offered for probate in the courts of this state cannot be required to give security for the costs, and that the provision of our statute (section 7249, Code 1923) for such security in “all suits at law or in equity, commenced by or for the use of a nonresident of this state,” has no application to this character of litigation. But the case of Rainer v. McElroy, 20 Ala. 347, is conclusive against petitioner’s contention.

It is insisted, however, what was there said is dictum, but it would seem the matter •of statutory liability of the surety for the costs lay at the threshold of the ease (Eslava v. Farley, 72 Ala. 214), and the court properly proceeded to a direct determination of that preliminary question.

In respect to the matter here pertinent, the statute there considered is in substance and effect the same as section 7249 of our present Code.

In the Rainer Case, supra, the court referred to the contestants as “actors in the proceeding,” and we are in accord with the conclusion there reached that no sufficient reason has been assigned'why such security for costs should not be required. The fact that in the contest proceedings (section 10625, Code 1923) contestant is called defendant is a mere matter of procedure. He has nevertheless “commenced” the litigation, and is subject to the taxation of costs, should the contest prove unsuccessful. Section 10632, Code 1923. And it is to be noted that section 1634, Code 1852, in force at the time of the rendition of the decision in the Rainer Case, supra, corresponds in all substantial respects with section 10625, Code 1923.

The ruling of the court in Ex parte Louisville & Nashville R. R. Co., 124 Ala. 547, 27 So. 239, that the statute requiring security for costs by a nonresident suitor was not violative of section 13 of our present Constitution (section 14, article 1 of Constitution of 1875), is equally applicable to section 10 of our Constitution, and needs no further discussion.

We conclude that both upon authority and *448 sound reasoning, as well, petitioner is not entitled to relief, and the mandamus will accordingly be here denied.

Writ denied.

ANDERSON, O. J., and BOULDIN and FOSTER, JJ., concur.

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147 So. 625, 226 Ala. 447, 1933 Ala. LEXIS 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-winn-ala-1933.

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