Ex parte Locke
Supreme Court of Alabama
This was an original application by petition, by "W. M. Locke et al. to this court for a mandamus, or other appropriate process or writ, to compel the judge of the city court of Eufaula “ to dismiss the action pending in said court in favor of the Importing and Exporting Company of Georgia, against petitioners, for the reason that security for costs was not lodged with the clerk before the commencement of the action,” &c„ the said city court having overruled the motion made…
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This was an original application by petition, by "W. M. Locke et al. to this court for a mandamus, or other appropriate process or writ, to compel the judge of the city court of Eufaula “ to dismiss the action pending in said court in favor of the Importing and Exporting Company of Georgia, against petitioners, for the reason that security for costs was not lodged with the clerk before the commencement of the action,” &c„ the said city court having overruled the motion made by petitioner to dismiss said suit, &c. In support of the motion in the court below, petitioners proved that the…
1Opinion of the CourtPeck, 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…
2Cases cited2 opinions
- Nashville & Chattanooga Railroad v. PeacockSupreme Court of Alabama · 1854
- Cox v. CooperSupreme Court of Alabama · 1841
3Cited by2 opinions
- West v. EngelSupreme Court of Alabama · 1893
- Peeling v. Delaware, Lackawanna & Western R. R., Pennsylvania Court of Common Pleas, Montour County1929