Rainer v. McElroy
Supreme Court of Alabama
Error to tbe Court of Probate of Sumter. Tbis was a motion by MeElroy, as executor of Isaac MeElroy, deceased, against tbe plaintiff in error, for a judgment for costs.
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Error to tbe Court of Probate of Sumter. Tbis was a motion by MeElroy, as executor of Isaac MeElroy, deceased, against tbe plaintiff in error, for a judgment for costs. Upon a petition by tbe executor pending in the Probate Court of Sumter, to,admit to probate tbe will of Isaac McEl-roy, deceased, it appears from tbe record, that James Bunyard and Delia, bis wife, wbo were persons residing in tbe State of Mississippi, appeared and voluntarily made themselves parties contestant, without being specially cited or summoned. Tbe citation and notice was to tbe heirs and legatees residing in tbis…
1Opinion of the CourtPhelan, J.
We have heard no sufficient reason assigned why Buñyard and wife, who are proved to have been non-residents, should not have been required to give security for costs as non-resident "plaintiffs. They were actors in the proceeding in the Probate Court to try the validity of the *349will of Isaac MeElroy, deceased. The statute says: “Every action at common law and suit in chancery, commenced in the name of any person residing out of this State, shall be dismissed, if security be not given,” &c., “for the payment of the costs which may be awarded to the defendant,” &c. This was doubtless intended to…
2Cited by1 opinion
- Ex Parte WinnSupreme Court of Alabama · 1933