Ex parte Locke

46 Ala. 77

• Court: Supreme Court of Alabama
• Decided: June 15, 1871
• Status: Published

Opinion

PECK, C. J.

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Section 2804 of the Bevised Code, if not literally, was substantially complied with by the plaintiff in the action against the petitioners, in the city court of Eufaula, before the suit in that behalf was commenced.

Security for the costs was given and entered on the complaint, which was in the office of the clerk, and actually in the hands of the deputy clerk, before the summons and complaint were handed to the sheriff to be executed. This was sufficient.

A writ, so far as giving security for costs is concerned, is not considered as commenced until the summons and complaint are handed to the sheriff to be served. — Ala. & Tenn. Rivers Railroad Co. v. Harris, 25 Ala. 229. The sueing out the writ is the commencement of the action, Cox v. Cooper, 3 Ala. 256. A writ can not be sai.d to be sued out until it passes from the hands of the clerk to the sheriff to be executed; and security for the costs may be lodged with the clerk at any time before that is done.

Let the application for a mandamus be denied, at the costs of the petitioners.