Potts v. United Supply Co.

22 S.E.2d 255, 222 N.C. 176, 1942 N.C. LEXIS 59

• Court: Supreme Court of North Carolina
• Decided: October 21, 1942
• Status: Published

Opinion

Stacy, C. J.

Defendants predicate their application for change of venue on C. S., 464, which provides that an action against a public officer or a person especially appointed to execute his duties, for an act done by him by virtue of his office, must be tried in the county where the cause of action, or some part thereof, arose, subject to the power of the court to change the place of trial for good cause shown.

It is contended that the cause of action arose in Wilkes County; that as to Homer Brookshire, it is based, in part at least, on an act done by him colore officii, and that, by the terms of the statute, the action must be tried in Wilkes County. Kellis v. Welch, 201 N. C., 39, 158 S. E., 142.

Concededly, the cause of action arose in Wilkes County. In respect of Homer Brookshire, however, it is not alleged that he participated in the conspiracy as a deputy sheriff, but as an agent and representative of the corporate defendant. This suffices to defeat the application for change of venue as a matter of right. The action is not against the sheriff for alleged malfeasance of his deputy. Lyle v. Wilson, 26 N. C., 226.

True, when an officer is sued for an act necessarily done colore officii, proper venue may not be defeated by alleging that the act was done by him as an individual. Shaver v. Huntley, 107 N. C., 623, 12 S. E., 316. But this is not the present case.

Moreover, there are cases,’ or dicta, which seem to suggest that a deputy sheriff is not a “public officer” within the meaning of this section. Styers v. Forsyth County, 212 N. C., 558, 194 S. E., 305; Borders v. Cline, 212 N. C., 472, 193 S. E., 826; Blake v. Allen, 221 N. C., 445.

On the record as presented, the application was properly denied.

Affirmed.