State v. Earnest

• Decision Date: 30 June 1899
• Citation: 26 So. 948,123 Ala. 631
• Parties: STATE v. EARNEST ET AL. [1]
• Court: Alabama Supreme Court

26 So. 948

123 Ala. 631

STATE v. EARNEST ET AL. ^[1]

Supreme Court of Alabama

June 30, 1899

Appeal from chancery court, Fayette county; Thomas Cobbs Chancellor.

Suit by the state, for the use of Fayette county, against R. M Earnest and others. Bill dismissed, and plaintiff appeals. Dismissed.

The bill in this case sought to have set aside, as fraudulent and void, a conveyance from R. M. Earnest to his wife, Salina Earnest. The bill avers that Fayette county is a judgment creditor of R. M. Earnest, by reason of the forfeiture of a bond entered into for the appearance of one John Kilgore at the circuit court of Fayette county to answer an indictment for murder, and that final judgment of forfeiture had been recovered against R. M. Earnest in favor of the county. The bill avers that the conveyance from R. M. Earnest to his wife was fraudulent and void, and made with the express purpose of evading liability on the bond. On the final submission of the cause upon the pleadings and proof, the chancellor rendered a decree dismissing the bill; and the present appeal is prosecuted from such decree, the rendition of which is here assigned as error. In this court the appellees made a motion to dismiss the appeal because the appellant did not give security for costs, as required by law.

Appeal from dismissal of suit to enforce a judgment on a forfeited recognizance is within Code, § 439, requiring security for costs before appeal; the county, the beneficial plaintiff being liable for costs.

Daniel Collier and R. F. Peters, for appellant.

Coleman & Bankhead and M. B. McCollum, for appellees.

TYSON J.

A county is a body corporate, liable to sue and to be sued as a natural person may be. Code, § 1397. Having the capacity to sue and be sued, and, of necessity, the right to become a party to a civil action, it is entitled to recover costs, if successful, and is liable, if unsuccessful, to the successful party for costs. Id. § 1325. The proceeding to enforce a forfeiture on an appearance bond is a civil action in which the county is the exclusive beneficiary. Peck v State, 63 Ala. 210; Hunt v. State, Id. 196; Hatch v. State, 40 Ala. 718; Governor v. Knight, 8 Ala. 297; State v. Hinson, 4 Ala. 671; Howie v. State, 1 Ala. 113; Code, § 4714 et seq.; Herr v. Seymour, 76 Ala. 270. The appearance bond being payable to the state, proceedings to enforce the forfeiture thereof must be in the name of the state, for the use of the county beneficially interested. Code, §§ 4375, 4376. And the county, being the beneficiary, must be considered the sole party plaintiff on the record. Code, § 29; Lehman v. Clark, 85 Ala. 109, 4 So. 651; Gardner v. Railroad Co., 102 Ala. 642, 15 So. 271. Section 1330 of the Code provides, "When a judgment is rendered against the plaintiff, in any suit brought in the name of a nominal plaintiff for the use of another, judgment for costs must be rendered against the beneficiary or his representatives." This suit was instituted for the enforcement of the judgment upon the forfeited recognizance, in which the state has no...