Garrett & Bibb v. Terry

33 Ala. 514

Opinion

STONE, J.—

If this proceeding be an action, within the meaning of section 2896 of the Code, our previous decisions require us to hold, that the bond given on suing out the supersedeas is not a security for the costs.—Ex parte Robbins, 29 Ala. 71; Shepherd v. Spriggs, 29 Ala. 673.

In Pratt & McKenzie v. Keils & Sylvester, 28 Ala. 390-97, we held, that the petition, in cases like the present, must be regarded as a new action. The “ filing of the petition ” was the commencement of the action; and the failure of the petitioners to give security for the costs, justified the court in dismissing the suit.

Judgment of the circuit court affirmed.