Casey v. Bryce

Citation173 Ala. 129,55 So. 810
PartiesCASEY v. BRYCE.
Decision Date16 June 1911
CourtSupreme Court of Alabama

Appeal from Chancery Court, Cullman County; W. H. Simpson Chancellor.

Suit by A. J. Casey against C. W. Bryce. From a decree sustaining a demurrer to the bill and dissolving a temporary injunction on the denials of the answer, complainant appeals. Affirmed.

Kyle &amp Hutson, for appellant.

F. E St. John and J. B. Brown, for appellee.

SOMERVILLE J.

This is a bill filed by the appellant, A. J. Casey, on January 12 1911, seeking to enjoin the appellee, C. W. Bryce, from taking possession of the office of sheriff of Cullman county, or any of the paraphernalia thereof, and from interfering in any way with complainant's possession of said office until a judicial determination of said Bryce's right to do so.

The bill shows that the complainant, Casey, was elected to the office of sheriff of Cullman county in 1906, and was the legal incumbent thereof for the term ending on January 16, 1911--a fact of which all courts must take judicial notice. It further shows that, within 15 days after the result of the general election of November, 1910, was declared, one C. C. Scheuing instituted a contest, in accordance with law, against the said C. W. Bryce, for the office of sheriff of Cullman county, which contest was then pending in the probate court.

The real gravamen of the bill seems to rest upon the notion that, as complainant is entitled to hold office until his successor is elected and qualified, he is therefore entitled to hold until this contest between Scheuing and Bryce is settled by the judgment of the probate court; and that, if Bryce, who "pretends" that he is entitled to the office, be allowed to enter into the office, as he is threatening to do, complainant will suffer irreparable injury, in that Bryce will get the fees and emoluments of the office and complainant will lose them. The bill avers, on information and belief, that Bryce was not elected to the office, which averment, however, construed in connection with the averment that Scheuing had filed a contest of Bryce's election "duly instituted in all respects as required by law," can only mean that the pleader's conclusion is that Bryce was not legally elected. A temporary writ of injunction was issued in accordance with the prayer of the bill.

The respondent Bryce answered the bill under oath, setting up that he was elected to the office at said election, which result had been regularly and duly declared by the authorized officers, and that he had been duly commissioned, and had qualified by filing his bond and taking the oath of office. A copy of the respondent's commission from the Governor, dated November 28, 1910, is attached as an exhibit to his answer. In the answer there was incorporated a demurrer to the bill for want of equity; and a motion was filed to dissolve the injunction for want of equity in the bill, and also upon the denials of the answer. The chancellor sustained the demurrer; and granted the motion to dissolve the injunction on the denials of the answer, and the appeal is from this decree.

1. The issuance of a commission to a public officer, by the Governor of the state, being a public act of public record which is prescribed by law, must be judicially noticed by courts. White v. Rankin, 90 Ala. 541, 8 South 118; Sandlin v. Anderson, 76 Ala. 403; Cary v. State, 76 Ala. 78. The declared result of a general election is also matter of judicial knowledge. 4 Wigmore on Ev. § 2577, note 3. We therefore judicially know, as did the chancery court, that C. W. Bryce was duly declared elected to the office of sheriff of Cullman county at the general election of November, 1910, and that a commission was duly issued to him therefor by the Governor of the state on November 28, 1910.

In White v. Sandlin, supra, it is said: "The clerk being a commissioned officer the court was authorized and bound to take judicial knowledge that he was clerk, and also of his term of office, when it commenced, and when it expired. If the cognizance extends beyond actual knowledge, the judge may resort to any authoritative sources of information, and inform himself of the fact in any way he may deem best in his discretion; but he is not required to receive oral evidence to disprove a fact, the existence of which is judicially known to the court." And in Cary v. State, supra, it is said: "The dates of these commissions are matters of public record in the executive department of the state government, being accessible to inquiry by all who may be concerned, and the law fixes the duration of each official term."

A commission from the Governor, issued on a certificate of election, confers a clear prima facie title to the office, entitling the person commissioned, after due qualification, to enter upon the discharge of the duties of the office; and his title is conclusive until the ultimate right to the office is determined on quo warranto (or now on statutory contest); and no inquiry as to the truth or falsity of the certificate upon which the commission is based can be entertained in any mere collateral proceeding. Plowman v. Thornton, 52 Ala. 559; Moulton v. Reid, 54 Ala. 320.

It results that judicial knowledge of matters of public record fixed and certain as they are, is not only compulsory upon the court, but is...

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26 cases
  • Ekern v. McGovern
    • United States
    • Wisconsin Supreme Court
    • June 2, 1913
    ...In re Sells, 15 App. Div. 571, 44 N. Y. Supp. 570;Conklin v. Cunningham, 7 N. M. 445, 38 Pac. 170;Beebe v. Robinson, 52 Ala. 66;Casey v. Bryce, 173 Ala. 129, 55 South. 810;Hubbell v. Amijo, 13 N. M. 482, 85 Pac. 1046;Cameron v. Parker, 2 Okl. 277, 38 Pac. 14;Elledge v. Wharton, 89 S. C. 113......
  • Hodge v. Joy
    • United States
    • Alabama Supreme Court
    • November 10, 1921
    ... ... knowledge are held to be those concerning the various ... commissioned officers of the state and the extent of their ... authority ( Casey v. Bryce, 173 Ala. 129, 55 So ... 810; Cary v. State, 76 Ala. 78; Miller v ... McMillan, 4 Ala. 527; Ingram v. State, 27 Ala ... 17); ... ...
  • Patten v. Miller
    • United States
    • Georgia Supreme Court
    • April 10, 1940
    ... ... 130 Ga. 733, 61 S.E. 721, 14 Ann.Cas. 626; Long v ... Rose, 132 Ga. 288, 64 S.E. 84; Smith v. Lester, ... 132 Ga. 517, 64 S.E. 478; Casey v. McElreath, 177 ... Ga. 35, 169 S.E. 342; Commonwealth ex rel. Steller v ... Livingston, 171 Ky. 52, 186 S.W. 916; Haymaker v ... State ex ... bar. The difference is important. See Scales v ... Faulkner, 118 Ga. 152, 44 S.E. 987; Casey v ... Bryce, 173 Ala. 129, 55 So. 810; DeShazo v ... Davis, 157 Va. 517, 162 S.E. 320, 81 A.L.R. 614; ... Heyward v. Long, 178 S.C. 351, 183 S.E. 145, ... ...
  • Yates v. Summers
    • United States
    • Mississippi Supreme Court
    • November 30, 1936
    ...found in Wood v. Miller, 154 Ark. 318, 242 S.W. 573; Guillotte v. Poincy, 41 La. Ann. 333, 6 So. 507, 5 L.R.A. 403; Casey v. Bryce, 173 Ala. 129, 55 So. 810, 811; Wright v. Cook, 216 Ala. 270, 113 So. 252; Doughty v. Bryant, 226 Ala. 23, 145 So. 420. The case of Wood v. Miller was a direct ......
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