Ex parte Winn

• Decision Date: 13 April 1933
• Docket Number: 8 Div. 412.
• Citation: 147 So. 625,226 Ala. 447
• Parties: Ex parte WINN.
• Court: Alabama Supreme Court

147 So. 625

226 Ala. 447

Ex parte WINN.

8 Div. 412.

Supreme Court of Alabama

April 13, 1933

Original petition by Robert J. Winn for mandamus to A. E. Hawkins, as Judge of the Circuit Court of Marshall County, requiring him to vacate and annul an order, made by him in the cause of John H. West and others, proponents, against Robert J. Winn contestant, requiring petitioner to give security for costs of contest of a will, and directing respondent to proceed with the hearing and trial of said contest without requiring security for costs.

Writ denied.

Street & Bradford, of Guntersville, for petitioner.

D Isbell, of Guntersville, for respondent.

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 case (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....