Little v. State ex rel. Huey

| Ala. | Nov 15, 1902

1 lAIÍALS'OX, J.

This petition appears to have been sworn to before the clerk and register of the court, on the 30th of March, 1903. On April 1st, following, the judge of said court issued his order, that upon the relator’s giving security for costs of the proceeding, an alternative writ should issue according to the prayer of the petition. Following tiiis order in the -transcript, is found an acknowledgement, as security -for costs, signed. by three persons, without date and rvithout anything on it to indicate’ that it was filed, or that it was approved by the clerk. Next follows the return of the sheriff of date April 1st, 1903, showing the execution of the petition on the defendants. By section 3421 of the: Code of 1896, it is provided that in an action of this character, it “may be brought without the direction of such judge [of the circuit court] on the information of any person giving security for the costs of the action, to' be approved by the clerk of the court in which the action is brought.” Construing this section, it was long ago held, that the statute contemplate,», that the security should be given before, the commencement of the suit, and that the securitv is a. condition precedent to- the right under the statute of instituting it, — Taylor v. State, 31 Ala. 383" court="Ala." date_filed="1858-01-15" href="https://app.midpage.ai/document/taylor-v-state-ex-rel-hand-6506138?utm_source=webapp" opinion_id="6506138">31 Ala. 383; The State ex rel. v. Town Council, 30 Ala. 66" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/state-ex-rel-burnett-v-town-council-of-cahaba-6505936?utm_source=webapp" opinion_id="6505936">30 Ala. 66.

The failure of the dork to enter on the paper purporting to bo a security for the costs his approval, did not vitiate it. as such, and nothing appearing to the contrary. the presumption might he indulged that it was approved by him. This presumption is not conclusive, however, but is subject to be rebutted by proof that it was i'ot in fact approved. — Good v. Jones, 56 Ala. 538" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/good-v-jones-6509557?utm_source=webapp" opinion_id="6509557">56 Ala. 538. it is proper to add, that no presumption can be raised that the security for costs wa,s given and approved by virtue of the fact of the fiat;, of the judge of the city court' found in the record, in respect to the giving of such security.

The defendants moved to dismiss the proceeding, on the ground, among others, that no security for costs had been-given and approved by the clerk before the commencement of the suit, which motion the court, overruled. In this connection defendants proposed to prove by fluí ch;rk, who Avas he.ing examined as a AAdtness, that ho had not approved the security offered, but bad expressly refused to do so. This evidence, on the objection of plaintiffs, the court would not allow. The evidence was admissible to rebut the presumption that might he otherwise indulged, that the security had been given, and the court erred in refusing to admit the evidence».

Since the case must he i’eversed for this error, the decision of the constitutionality of the act creating the police commission is at this time unnecessary and improper. — Joiner v. Winston, 68 Ala. 130.

Reversed and remanded.