Ex Parte JEMISON

Ex Parte JEMISON. [application fob mandamus to compel dismissal of suit by non-resident for want of security for costs.] 1. When security for costs is unnecessary. — In an action brought by several co-plaintiffs, one of whom is a resident of this State, security for costs (Code, § 2396) is not necessary, although all the others are non-residents. APPLICATION for a mandamus to the circuit court of Sumter, Hon. Vm. S. Mudd presiding, to compel the dismissal of a suit therein pending, wherein James B. Smith and others are plaintiffs, and "William II. Jemison is defendant, on account of the plaintiffs’ failure to give security for the costs. The circuit court overruled the motion to dismiss the suit, because it appeared that one of the plaintiffs was a resident citizen of this State at the time the suit was commenced, and so continued up to the time when the motion wras heard. The defendant, having excepted to this ruling of the court below, now makes it the ground of an application to this court for a mandamus. TurNek Reavis, for the motion. [MAJORITY — RICE, C. J.] RICE, C. J. — Where one of several plaintiffs is a resident of this State at the commencement of the action, and at the time a motion is made to dismiss the suit under section 2396 of the Code, for want of security for costs, the motion ought to be overruled. The resident plaintiff is liable to a judgment for costs; and in such case, that section of the Code does not authorize a dismissal of the suit, for the failure to give security for the costs before or at the time the action is commenced. — Ex parte Bush, 29 Ala. 50. The motion is denied, at the costs of the petitioner.