Levi Maddox v. James Humphries, 30 Tex. 494

Morrill, C. J. The plaintiff instituted suit against defendant, founded upon personal services for work and labor, &e., performed previous to 17th January, 1857. It seems that the petition was handed to the clerk of the district court on 12th January, 1859, with the indorsement thereon, “The clerk will not issue upon this until further instructed by me, C. Reich, attorney; ” and the clerk, in obedience thereto, issued process on 14th February, 1859.

From the deposition of the clerk, taken by consent, it was proved that he issued process on the day he was instructed so to do by plaintiff, and that he did not issue on the day the petition was handed to him, or any subsequent day previous to the 14th February, 1859; because he was governed by the indorsement on the petition directing him not to issue.

The only question, therefore, as presented by the pleadings and judgment, is whether the suit was instituted on the day the petition was handed to the clerk or the day it was ordered to be issued on, as the statute of limitation would be successfully pleaded in one case. It will be noted that the act of limitation provides that actions shall be commenced and sued within a certain limited time, which is equivalent to the -declaration that the party shall do everything that the statute requires to have a writ issued.

Simply leaving a petition with a person who may be a clerk, with directions to use it, not as a clerk of the court, but as an individual, cannot be considered as filing the same with the clerk officially. The statute is express and positive as to the duties of the clerk when a petition is filed: to issue a writ upon the same agreeably to the request contained in the petition; and the petition could not be considered as filed, and should not be so endorsed by the clerk, unless received for the purposes of suit.

In the case at bar, the most that could be said of the transaction, previous to the time at which suit was ordered, is, that the petition was left with the clerk in his individual capacity as bailee, which the party would have the right to withdraw in the same manner as he would any other piece of property.

In those states where suits are instituted by a writ it has been decided, that “ when a writ is made provisionally, •and delivered to an officer with instructions that it is not to be used until after a certain time, or the happening of a certain event, the action cannot be considered as commenced until the arrival of the time or the happening of the event.” (Seaver v.

Lincoln, 21 Pick., 269.) “ A writ is not considered as legally sued out until it is delivered to the sheriff, with authority to him to serve it on the defendant.” (Angelí on Limit., § 312.) We therefore consider that the suit was not instituted till the petition was filed with the clerk and he was expressly or impliedly requested to issue a writ, and, this being more than two years after the cause of action accrued, the statute of limitation interposed a bar to the cause of action, and that the judge did not err in so deciding. Judgment aeeibmed.