Threadgill v. . the Carolina Central Railway Co.

73 N.C. 178

• Court: Supreme Court of North Carolina
• Decided: June 5, 1875
• Status: Published

Opinion

Rodman, J.

The summons in this case was issued on the 27th August, by the deputy of one who had been the Clerk of the Superior Court up to the election, which had taken place on the first Thursday in that month, at which a successor was elected. The successor, however, had not qualified at the date of the summons, and did not do so until the first Monday of the following September, and in the meanwhile the old Clerk continued in possession of the records, and to perforin all duties of the office.

The defendant moved to quash the summons, as issued without authority. His Honor refused the motion, and the defendant appealed. We concur with his Honor. It is unnecessary to inquire whether the old Clerk rightfully held over until the qualification of his successor or not. That question can scarcely be presented except iu a case where the old Clerk refuses to perform the duties of the office after the elevation of his successor, and is sued separately, or on his bond for such refusal, or for a malfeasance, or in au action by such Clerk to recover his fees. We express no opinion on that question. We conceive it to be clear, that under the circumstances of this case, the old Clerk was at least Clerk cle facto, and his acts cannot be collaterally impeached, and are valid as between third parties. All or most of the authorities, bearing on this question of who is a de facto officer, and the effect of his acts may be foundjn the case of Norfleet v. Staten, decided at this term. Among these, the case of Gilliam v. Riddick, 4 Ire., 368, seems to cover the present question.

Judgment affirmed. Let this opinion be certified.

Per Curiam.

Judgment affirmed.