TERRITORY OF OKLAHOMA v. SELLERS

TERRITORY OF OKLAHOMA v. SELLERS
1905 OK 87
82 P. 575
15 Okla. 419
Decided: 09/06/1905
Supreme Court of Oklahoma

Supreme Court of the Territory of Oklahoma.

TERRITORY ex rel. THACKER, Co. Atty.,
v.
SELLERS et al.

Sept. 5, 1905.

Syllabus by the Court.

¶0 The official acts of a public officer are presumed to be regular, and within the scope of his powers; and an appearance bond approved by a sheriff on the same day that it was taken by the deputy clerk of the district court is presumed to have been taken, accepted, and approved by the sheriff before the prisoner was released, and therefore valid.

Chas. M. Thacker, Co. Atty., for plaintiff in error.
Garrett, Garrett & Wells, for defendants in error.

HAINER, J.

¶1 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.

¶2 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 demurrer 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 of 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.

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

¶4 All the Justices concurring.