Quo Warranto Action – Security for Costs


Burkes v. Franklin, [Ms. 1210044, July 15, 2022] __ So. 3d __ (Ala. 2022). The Court (Bryan, J.; Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur) dismisses Frederick Burkes’s (“Burkes”) appeal from the Jefferson Circuit Court’s dismissal of a quo warranto action filed by Burkes and alleging that James Franklin was unlawfully usurping a constable’s office to which Burkes had been lawfully elected. The Court’s unanimous decision holds that “Burkes’s failure to give the circuit court security for the costs of this action deprived the circuit court of subject-matter jurisdiction over the action. Because the circuit court lacked subject-matter jurisdiction over this action, its judgment is void. Because a void judgment will not support an appeal, this appeal must be dismissed.” Ms. *13.

The decision rests in part on the statutory nature of the writ of quo warranto:

“The right of the citizen to use the name of the state in prosecuting an information in the nature of quo warranto ... is purely statutory.’ Ex parte Talley, 238 Ala. 527, 529, 192 So. 271, 271 (1939). The writ retains its public flavor in that the issuance thereof ‘must serve the public good, although it may also incidentally benefit the person or persons that institute the action.’ Ex parte Sierra Club, 674 So. 2d 54, 57 (Ala. 1995)(emphasis added).” Brannan v. Smith, 784 So. 2d 293, 296 (Ala. 2000).

Ms. **10-11.

The action was defective because Burkes failed to name the State as a nominal party and was also defective because Burkes failed to file security for costs approved by the Clerk of the Court, as required by [§] 6-6-591(b) Ala. Code 1975. Ms. *11.

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