Griswold v. Thornton

129 Ala. 454 | Ala. | 1900

DOWDELL, J.

The appeal in this case was sued out in the name of all the respondents in the court below. The motion to dismiss the appeal is based upon two grounds, the first 'being that after the rendition of the final decree, appealed from and before the appeal was sued out, Emma Williams, one of the respondents in whose name the appeal was taken, had died. Sufficient to say that this ground of the motion had been met and obviated by a counter motion to amend the appeal so as to show that the same was taken in the name of all the respondents except the said Emma Williams.

'The second ground of the motion is to dismiss for want of security for costs. The appeal, as we have said, was sued out in the name of all the respondents. Two of the respondents, being minors, were represented by a guardian ad litem, and as representing such minors and joining with the other respondents in the appeal, he became thereby, of his own motion, an actor, and liable for the costs of the appeal just as any other party appealing. The persons signing the security for costs, which was taken and approved by the register, were parties to the suit. . Ernest L. Blue, as guardian ad litem for -the minors, and who joins with the appellant in taking the appeal, it is true was a party in a representative ca: parity, but this makes him none the less a .party, just as a general guardian or an administrator would be in his representative capacity. He is certainly a party to the suit in the sense of the right of prosecuting an appeal. If he were not a party, he could not prosecute an appeal. We know of no statute which would authorize him to prosecute an appeal without giving security for costs as any other party appealing, unless it be section 468, which by the terms of the statute is. limited to appeals taken from decrees by the probate court or probate judge. The security for costs in this case, being signed by only those who were parties to the suit in the court below, is not in compliance with the requirements of section 439, which has been decided by this court to be peremptory.—King & Owen v. McCann, 25 Ala. 471; Davis v. McCampbell, 37 Ala. 609. Section 1348 of the C.ode, which provides for a money deposit with the clerk or register as security, applies to suits commenced by non-residents, and has no application to appeals.

As no security for costs was given in compliance with the requirements of the statute, it follows that the motion to dismiss the appeal must prevail.

The. appeal is dismissed.