Ex parte Bromberg , 121 Ala. 361 ( 1898 )

SHARPE, J.

— The petitioner bases his right to mandamus uppn section 1347 of the Code -which requires that “all suits at law or in equity commenced by or for the use of a non-resident 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 non-resident,” 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 brought in the name of a nominal plaintiff for the use of another, judgment for costs must be rendered against the beneficiary or his personal representative.”

The statute having thus changed the common law rulé and established the use plaintiffs’ relation to the suit as that of a principal party, and baying placed him upon the same footing with other plaintiffs in reference to his liability for costs, the same necessity existed for requiring him to secure costs when residing out of the jurisdiction as existed in the case of other non-resident plaintiffs.

It is apparent that the requirement in question has reference only to those suits which are brought pro forma by a nominal plaintiff in behalf of a non-resident for whose benefit the recovery if any directly enures, and who may become directly liable for costs, and not to the case of a resident administrator suing to recover .assets of the estate he represents though the decedent may have been a non-resident and the distributees of tlieestatemay reside out of the State. In such a suit the administrator is the actual and the only plaintiff. In his representative capacity he is entitled to recover whatever may be recovered and in his hands it is subject to legal charges before it can be claimed by distributees of the estate.

Though the distributees may have a beneficial interest to be obtained through the process of administration they are in no sense parties to suits brought by the administrator to recover assets of the estate. Nor is such a suit brought for their use within the meaning of the statute referred to. The application for mandamus must therefore be denied.