50 So. 109 | Ala. | 1909
— The action is by appellee against appellant for damages for the negligent killing of an animal belonging to the appellee. All of the errors assigned and urged relate to ruling on the admissibility of evidence and giving or refusing charges to the jury.
The main contention of appellant is that the statute of limitations of one year forbade the recovery in this action. The undisputed facts in that connection were: Lewis was a de facto justice of the peace in September, 1903. — Thorington v. Gould, 59 Ala. 461, 468, 469; Masterson v. Matthews, 60 Ala. 260. His acts as such justice
The word “issued” is the key word of the statute for ■present purposes of interpretation. And in determining what it comprehends as necessary to the commencement •of a suit and the cessation of the running of the statute ■of limitations, Code 1896, § 2814, should be considered in connection with section 2667. Section 2814 was considered in West v. Engel, 101 Ala. 509, 14 South. 333, and, construing the expression “suing out of the summons,” it was there held that the summons was not sued out until it “passed from the hands of the clerk, properly signed by him, to the sheriff or other proper officer to be ■executed, or is sent by mail or otherwise to such officer with a bona fide intention to have it served.” Many de
Nothing can be taken by the assumption that cases may arise where there is no one to whom to commit the process in a civil suit before a justice, for service; because we have statutes that, if availed of, render, for practical purposes, such a condition impossible. Code 1896, §§ 979, 2668. Besides the whole scheme of process, issuance, and service includes the purpose to not blend the two powers — one judicial, generally speaking, and the other, generally speaking, executive. If a justice of the peace might be both issuer and executioner of processes in civil actions where, as here, the question of limitations may arise, or where other action is dependent upon when the process was, in fact, executed, the court itself might and would become in such case the source of proof of its own jurisdiction or whether the matter complained of had passed the period to remain an enforceable right. A predicament of that character should be avoided where it can be done according to methods provided and readily availed of upon occasion. The plea of statute limitations of one year was proven beyond dispute. The judgment is reversed and the cause is remanded.
Reversed and' remanded.