Ex Parte BUSH

Ex Parte BUSH. [MOTION FOB MANDAMUS — SECUEITY FOB COSTS BY NON-BESIDENT PLAINTIFF.] 1. Construction of statute requiring security for costs from non-resident plaintiff. — The statute which requires the dismissal, on motion, of a suit commenced by a non-resident without first giving security for costs, (Code, § 2396,) doesnot apply to a suit instituted by a non-resident nominal plaintiff, for the use of a resident, although the complaint shows that the action ought to have been brought in the name of the beneficiary. MOTION for a mandamus' to the Circuit Court of Pickens, Hon. C. W. Bapier presiding, to compel the dismissal of a suit instituted by a non-resident without first giving security for the costs. The facts shown by the record, on which the application was based, are as follows : The suit was instituted by Stanhope S, Baine, for the use of Albert T. Henley, to recover wages due said Baine as overseer of defendant’s plantation. At the appearance term, the defendant moved the court to dismiss the suit, on the ground that said Baine was a non-resident of this State, and had not given security for the costs ; and, in support of his motion, proved these facts. But the plaintiff having proved that said Henley, for whose use the suit was brought, was a resident of this State, the court overruled the motion ; and thereupon the defendant excepted. J. W. Shepheed and A. B. Clitherall, for the motion. TurNer Beavis and H. S. SheltoN, contra. [MAJORITY — WALKEB, J.] 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.