Ledbetter v. State

58 S.E. 1106, 2 Ga. App. 631, 1907 Ga. App. LEXIS 466

Opinion

Powell, J.

1. The office of deputy clerk of the superior court exists; therefore one may de facto hold that office who, because of a failure to take the oath, is not entitled to hold it de jure. The acts of such de facto officer are as effective in matters either civil or criminal as if he were regularly qualified. Civil Code, § 4359; Political Code, § 242; Ballard v. Orr, 105 Ga. 195 (31 S. E. 554); Gunn v. Tackett, 67 Ga. 725; Herrington v. State, 103 Ga. 318 (29 S. E. 931); Brooks v. Rooney, 11 Ga. 423; Allen v. State, 21 Ga. 219 (68 Am. D. 457); Tietjen v. Merchant’s Bank, 117 Ga. 503 (41 S. E. 730).

2. The evidence not being such as to preclude a finding that the indictment had been returned into court and delivered to the clerk or to his de facto deputy, a finding by the trial judge, acting by consent as trior, against a plea in abatement alleging to the contrary, will not' be disturbed. Judgment affirmed.

E. K. Overstreet, for plaintiff in error. T. J. Evans, solicitor, contra.