State ex rel. Fayette County v. Earnest , 123 Ala. 631 ( 1898 )

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. — Code, § 1325.

The proceedings to enforce a forfeiture on an appearance bond, is a civil action in which the county is the exclusive beneficiary.—Peck v. The State, 63 Ala. 201; Hunt v. The State, Ib. 196; Hatch v. The State, 40 Ala. 718; The Governor v. Knight, 8 Ala. 297; The State v. Hinson, 4 Ala. 671; Howie & Morrison v. The 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 and 4376. And the county being the beneficiary, must be considered the sole party plaintiff on the record. — Code, § 29; Lehman, Durr & Co. v. Clarke, 85 Ala. 109; Gardner v. M. & N. Railroad Co., 102 Ala. 642.

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 forfeitfed recognizance, in which the State has no possible interest and is a mere nominal plaintiff. Under the section of the Code above quoted' the county would be liable for the costs in the event of an unsuccessful termination of this cause and the nominal plaintiff in nowise responsible therefor.—Dover v. The State, use of Winston County, 45 Ala. 244; The State, use of Coosa County v. Parker, 83 Ala. 269.

Section 439 of the Code requires security for costs to be given before an appeal to this court can be taken .from a final decree or judgment. The county being liable for costs, must comply with this requirement. No security for costs in this cause having been given, the motion to dismiss this appeal must be granted.

Appeal dismissed.