Territory of Oklahoma Ex Rel. Thacker v. Sellers

Supreme Court of Oklahoma

Territory of Oklahoma Ex Rel. Thacker v. Sellers

1905 OK 87, 82 P. 575, 15 Okla. 419, 1905 Okla. LEXIS 52

CourtSupreme Court of Oklahoma

DecidedSeptember 6, 1905

StatusPublished

Cited by3 cases

This text of 1905 OK 87 (Territory of Oklahoma Ex Rel. Thacker v. Sellers) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Territory of Oklahoma Ex Rel. Thacker v. Sellers, 1905 OK 87, 82 P. 575, 15 Okla. 419, 1905 Okla. LEXIS 52 (Okla. 1905).

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Opinion

Opinion of the court by

Hainer, J.:

This was an action commenced in the probate court of Greer county, by the county attorney, in the name of the Territory, and against the defendants in error, on a written instrument purporting to be an appearance or bail bond. The bond in this case, a copy of which is attached to and made a part of the plaintiff’s petition, shows that it was taken, subscribed, and acknowledged before the deputy clerk of the district court, and was, on the same day, approved by J. B. Overton, sheriff.

It is contended by the plaintiff in error that this bond is valid, for the reason that it was approved by the sheriff, and hence that the trial court erred in sustaining the de *420 murrer to the petition. The law is well settled that, in the absence of proof it will be presumed that the official acts of a public officer were regular, and that the officer acted within the scope of his powers. In this case, the bond shows that it was approved by the sheriff on the same day that it was taken by the deputy clerk. Hence we think it would be presumed that the sheriff accepted and approved the bond before the prisoner was released, and this would satisfy the requirements of the statute. It is true, however, that if the approval of the bond by the sheriff was after the release of the prisoner, the requirements' of the statute would not be satisfied, and the bond would be a nullity, and the case would come within the doctrine announced by the supreme courts of Kansas and Missouri in the cases or Morrow v. State, 5 Kan. 563 and State v. Caldwell. 124 Mo. 509, 28 S. W, 4. But in the absence of proof all the allegations of the petition must be taken as true, as against a general demurrer, and hence we are of the opinion that the petition stated facts sufficient to constitute a cause of action, and that it was error to sustain a demurrer thereto.

The judgment of the court below is therefore reversed and remanded, with directions to overrule the demurrer to the petition.

All the Justices concurring.

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Opinion of the court by

Hainer, J.:

This was an action commenced in the probate court of Greer county, by the county attorney, in the name of the Territory, and against the defendants in error, on a written instrument purporting to be an appearance or bail bond. The bond in this case, a copy of which is attached to and made a part of the plaintiff’s petition, shows that it was taken, subscribed, and acknowledged before the deputy clerk of the district court, and was, on the same day, approved by J. B. Overton, sheriff.

It is contended by the plaintiff in error that this bond is valid, for the reason that it was approved by the sheriff, and hence that the trial court erred in sustaining the de *420 murrer to the petition. The law is well settled that, in the absence of proof it will be presumed that the official acts of a public officer were regular, and that the officer acted within the scope of his powers. In this case, the bond shows that it was approved by the sheriff on the same day that it was taken by the deputy clerk. Hence we think it would be presumed that the sheriff accepted and approved the bond before the prisoner was released, and this would satisfy the requirements of the statute. It is true, however, that if the approval of the bond by the sheriff was after the release of the prisoner, the requirements' of the statute would not be satisfied, and the bond would be a nullity, and the case would come within the doctrine announced by the supreme courts of Kansas and Missouri in the cases or Morrow v. State, 5 Kan. 563 and State v. Caldwell. 124 Mo. 509, 28 S. W, 4. But in the absence of proof all the allegations of the petition must be taken as true, as against a general demurrer, and hence we are of the opinion that the petition stated facts sufficient to constitute a cause of action, and that it was error to sustain a demurrer thereto.

The judgment of the court below is therefore reversed and remanded, with directions to overrule the demurrer to the petition.

All the Justices concurring.

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1905 OK 87, 82 P. 575, 15 Okla. 419, 1905 Okla. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/territory-of-oklahoma-ex-rel-thacker-v-sellers-okla-1905.

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