Ex parte Bromberg

• Decision Date: 10 May 1899
• Parties: EX PARTE BROMBERG.
• Court: Alabama Supreme Court

25 So. 994

121 Ala. 361

EX PARTE BROMBERG.

Supreme Court of Alabama

May 10, 1899

Application by Frederick G. Bromberg for mandamus to compel dismissal of suit for failure to give security for costs. Application denied.

This was an original application for mandamus, addressed to the judges of this court, in which the following facts were averred and disclosed: On December 12, 1898, R. M. Sands, as administrator of John Nardin, deceased, brought a suit against Frederick G. Bromberg in the circuit court of Mobile county for the sum of $224.85. John Nardin, at the time of his death, was a nonresident of the state of Alabama, and the administrator brought said suit solely for the use of nonresidents of said state, and failed to give security for the costs of said suit when it was commenced, and has never given such security since. Said Frederick G. Bromberg appearing specially and for the purpose only of making said motion, moved the court to dismiss said suit because the plaintiff had failed to give security for costs thereof, as required by law, or also to require the plaintiff to give security for costs. The court overruled this motion, and refused to grant it. The said Frederick G. Bromberg then filed the present petition in this court, asking the court to grant him the writ of mandamus directed to the judge of the circuit court of Mobile county, commanding him to dismiss said suit, or to require the plaintiff therein to give security for costs of said suit.

Chas L. Bromberg, Jr., for petitioner.

SHARPE J.

The petitioner bases his right to mandamus upon section 1347 of the Code, which requires that "all suits at law or in equity commenced by or for the use of a nonresident of this state must be dismissed on motion if security for costs be not given by such nonresident when the suit is commenced, or within such time thereafter as the court may direct." The meaning of the provision, in respect of the kind of suits mentioned as suits commenced "for the use of a nonresident," and likewise the reason for requiring security for costs in such cases, is found by reference to section 29 of the Code, whereby, "in all cases where suits are brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party on the record," together with section 1330 of the Code, which requires that "when judgment is rendered against the plaintiff in any suit...