Opinion
1 Div. 173.
June 24, 1943.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Petition by the State, on the relation of Alice Everett, as Mother of Mary Katherine Everett and others, for mandamus to require the Board of School Commissioners of Mobile County, the members of such Board, and others as the Superintendent of Education of said County and Principal of Satsuma School, to permit children of relator to be enrolled and admitted as pupils in said Satsuma School. From a judgment dismissing the suit, relator appeals.
Reversed and remanded.
W. C. Taylor, of Mobile, for appellant.
The next friend of the minor is not the real and true plaintiff in the cause. Thomason v. Gray, 84 Ala. 559, 4 So. 394; Cook v. Adams, 27 Ala. 294. Relator who acted for one minor in the former suit, would not be required to pay costs therein as a condition to maintenance of a subsequent suit on behalf of entirely different minors. Ex parte Clemmons, ante, p. 13, 12 So.2d 81.
Pillans, Cowley Gresham, of Mobile, for appellees.
Orderly administration of justice and prevention of undue vexation by repetitive suits, places within the inherent power of courts to condition the maintenance of a later action between the same, or substantially the same parties, upon payment of costs in the earlier suit. This is now the statutory rule. Thereby constitutional rights are not infringed. Code 1940, Tit. 11, § 66; Ex parte Street, 106 Ala. 102, 17 So. 779; Ex parte McAnulty, 117 Ala. 237, 23 So. 680; Hamilton v. Maxwell, 119 Ala. 23, 24 So. 769; Ex parte Shear, 92 Ala. 596, 8 So. 792, 11 L.R.A. 620. Appellant in promoting the litigant is in no sense a next friend promoting an infant's cause of action. Infants may sue by next friend, but the suit must be in the infant's name, as plaintiff. Code 1940, Tit. 7, § 102; Upshaw v. Eubank, 227 Ala. 653, 151 So. 837.
This is a petition for mandamus by the State of Alabama, on the relation of Alice Everett, as the mother of Mary Katherine Everett, Ola Jeanette Everett, William Lavelle Everett, and Charles Ray Everett, minors, instituted in the circuit court of Mobile County to require the board of school commissioners of Mobile County to admit relator's children of school age to the Satsuma public school for white children. They had been denied admittance on the ground that they were "colored children."
The only question presented on this appeal is the action of the trial court in dismissing complainant's suit because of her failure to pay the costs in a former suit. The case in which the costs were not paid was a petition for mandamus in the name of the State of Alabama on the relation of Alice Everett, as the mother of Clara Jane Everett, v. the Board of School Commissioners of Mobile County, et al.
Section 66, Title 11, Code of 1940, provides as follows: "Whenever a suit has been dismissed or nonsuit taken, or when there has been one judgment in favor of the defendant in an action of ejectment, at the time of the filing of another suit, involving the same claim, cause of action or land, between the same parties or their privies, the party filing the new suit must also pay into court all costs incurred in the former suit, and, upon his failure to do so, the judge, upon motion of the defendant or any other party in interest shall dismiss said action; but upon good cause shown, the judge may permit the party to pay such costs within ten days and proceed with the suit."
When the terms of the above quoted statute are applicable, poverty is no excuse for the failure to pay costs in a former suit, and a new suit is subject to dismissal on motion where the costs in a former suit "involving the same claim, cause of action or land, between the same parties or their privies," are not paid, irrespective of the inability of the person filing the new suit to pay the costs incurred in the first suit. It has been held that such a requirement does not constitute a denial of due process of law. Ex parte Shear, 92 Ala. 596, 8 So. 792, 11 L.R.A. 620.
Even if it be conceded that the suits were "between the same parties," we do not believe that appellant's suit should have been dismissed for the reason that the claim or cause of action which is sought to be invoked in the instant case is not the same as sought to be invoked in the case in which the costs were not paid. Here admission to the white public schools of Mobile County is sought on behalf of the children named in the complaint, none of whom were in any way connected with the former suit. It is true that children of Alice J. Everett were involved in both suits and admission to the white public schools of Mobile County was sought in both instances, but different children were involved. The right sought to be enforced in this case is entirely different from that made the basis of the former suit.
Reversed and remanded.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.