56 So. 2d 106 | Ala. | 1952
This is a proceeding to oust by quo warranto appellee who was appointed circuit solicitor to fill a temporary vacancy created by reason of the induction into the Armed Forces of the solicitor elected to that office.
The first matter we will treat is whether security for costs was given as required by section 1137, Title 7, Code. The petition was not filed on the order of the judge of the circuit court but by the State on the relation of certain named individuals, who eventually made themselves parties to the petition, as was necessary. *561
Section 1137, supra, requires security for costs approved by the clerk to be given. Such security for costs must be given before the commencement of the suit and is a condition precedent to the jurisdiction of the court. Wenzel v. State ex rel. Powell,
There was deposited $15.00 as security at the commencement of the proceeding. The trial court required relators "to furnish security for cost in the amount of $300.00 in addition to the $15.00 already deposited." A bond was made pursuant to that order in the sum of $300.00, whereby the bondsmen acknowledged "themselves for cost in the sum of $300.00 as security for the cost and said quo warranto proceeding in the Circuit Court of Baldwin County." This was approved by the clerk July 11, 1951. The original petition was filed June 28, 1951. There was no other security given.
We are therefore confronted with the question of whether a deposit of $15.00 approved by the clerk complies with § 1137, supra, that security for the costs of the action must be given. We look to other statutes for analogies, since this direct question has not been decided. Section 238, Title 17, Code, provides for the contest of an election. It requires security for costs to be filed and approved at the time of commencing the contest. It is noted that this statute requires the security to be "filed". Emphasis was given that status in Pearson v. Alverson,
In Ex parte Shepherd,
In other cases, it was held that if some sort of security is given in a bona fide effort to comply with the statute, but it is not a full compliance, it is sufficient for jurisdictional purposes to allow an amendment of the security to be made within the time allowed for starting the suit by giving the required security. Peavey v. Burket,
This principle is consistent with that which holds that if no security is given when the proceeding is begun it cannot be afterwards given: for then the court can take no step. Taylor v. State ex rel. Hand,
Although the deposit of $15.00 may be sufficient to sustain the jurisdiction of the court to allow the security to be amended to comply with § 1137, Title 7, supra, no time limit being fixed by statute in which quo warranto may be begun, we think the amended security was insufficient when so measured. There is a limit of liability prescribed in it, towit, $300.00. The statute does not permit such a limited security. It must secure all the costs which may accrue, regardless of the amount of *562
them. Wilson v. Duncan, supra; Ex parte Shepherd,
Relators did not offer to give the security required by statute but took a non-suit to test the ruling of the court. If they had offered the proper security the court would probably have allowed it.
We need not discuss other questions presented and argued.
Affirmed.
All the Justices concur, except GOODWYN, J., not sitting.