Ex parte State ex rel. Altman
Citation | 237 Ala. 642,188 So. 685 |
Decision Date | 04 May 1939 |
Docket Number | 2 Div. 143. |
Parties | EX PARTE STATE EX REL. ALTMAN. |
Court | Supreme Court of Alabama |
Original petition of the State of Alabama, on the relation of John A Altman, for mandamus to Benjamin F. Elmore, as Judge of the Circuit Court, Sumter County, directing him to make an order requiring the complainant in the cause styled Dorothy Altman v. John A. Altman, pending in said Circuit Court, to give or furnish security for costs.
Mandamus denied.
Granade & Granade, of Chatom, for relator.
McQueen & McQueen, of Tuscaloosa, for respondent.
The proceedings here is upon petition of John A. Altman defendant in a certain cause pending in the Circuit Court of Sumter County, wherein Mrs. Dorothy Altman is complainant and the said John A. Altman is defendant, for mandamus directed to Hon. Benjamin F. Elmore as Judge of the Circuit Court of Sumter County, Alabama, requiring the said Elmore, as such judge, "to make and enter an order" in the above mentioned cause, requiring the complainant therein to give or furnish security for the cost of said suit. The insistence of the petitioner is that the complainant in said cause was, at the time the suit was instituted, a nonresident of the State of Alabama, or, that since the filing of said suit, the complainant has ceased to be a resident of Alabama and has established a residence in the State of Mississippi.
In the court below, the said John A. Altman filed two successive motions to require the complainant to give security for the cost in the cause so brought by the complainant against him. In said cause the complainant sought divorce and alimony, and also the custody of four minor children, the products of the marriage union between complainant and petitioner.
Petitioner's motions filed in the circuit court were predicated upon averments that the complainant was a nonresident of the State of Alabama, and actually resided at Enterprise, in the State of Mississippi.
These motions were duly set down for hearing and heard by the court. At the hearing in each instance the complainant appeared, and denied that she was a nonresident of the State but insisted that she was then, and had been for a number of years, a resident of the State of Alabama, though she admitted upon each hearing that she was at the time living with her father and mother at Enterprise, Mississippi, but further insisted that her absence from Alabama was temporary, and, in legal effect, was due to compulsion, or involuntary.
Section 7249 of the Code provides: "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 cost, approved by the clerk or register, be not given by such nonresident when the suit is commenced, or within such time thereafter as the court may direct."
And Section 7252 of the Code provides: "If suit be commenced by or for the use of a resident, who afterwards removes from the state, the defendant, by motion to the court, or by notice to the plaintiff, his agent, or attorney, or solicitor, may require security for costs; and if such security be not given within thirty days after such notice or order of the court, the suit must be dismissed."
These statutes are, of course, mandatory.
In our recent case of Caheen v. Caheen, 233 Ala. 494, 172 So. 618, 619, which was a divorce proceedings, the observation is made: "
In Lucky v. Roberts, 211 Ala. 578, 100 So. 878, 879, it was held: ...
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