Opinion
8 Div. 87.
May 9, 1929.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Proctor Snodgrass, of Scottsboro, for appellants.
Proof that an individual has acted notoriously as a public officer is prima facie evidence of his public character without producing his commission of appointment. 1 Greenleaf on Evid. 127; 35 Cyc. 1522, 1663; Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am. St. Rep. 91; Mathis v. Carpenter, 95 Ala. 156, 10 So. 341, 36 Am. St. Rep. 187; E. T., V. G. Ry. Co. v. Davis, 91 Ala. 615, 8 So. 349; Yorkshire Ins. Co. v. Bunch-Morrow M. Co., 212 Ala. 588, 103 So. 670.
Milo Moody, of Scottsboro, for appellees.
Brief of counsel did not reach the Reporter.
The action was by appellants against the sheriff and the sureties on his official bond for alleged negligence of one Roach, who was alleged to have been a deputy for the defendant sheriff, in failing to levy a writ of attachment issued by a justice of the peace against one Shadden. It is entirely clear that the suit was made to turn in the trial court upon the proposition that plaintiffs had offered no competent evidence of the fact that Roach, in dealing with the writ of attachment placed in his hands for service, was acting with authority for the defendant sheriff.
The fact that Roach acted in the capacity of deputy sheriff, that he had been acting, meaning acting as deputy sheriff, as the context shows, and serving papers up there, meaning in the precinct of the justice of the peace who issued the writ, and that he undertook to discharge the functions and duties of sheriff in the particular case of which complaint was made, should have been admitted in evidence, and would have carried the issue made between the parties to the jury. Mathis v. Carpenter, 95 Ala. 156, 10 So. 341, 36 Am. St. Rep. 187; Martin v. State, 89 Ala. 118, 8 So. 23, 18 Am. St. Rep. 91; 35 Cyc. 1522. Nor was it necessary to produce any record or written evidence of his appointment. Martin v. State, supra.
As we have already said, in substance, the other rulings now assigned for error were made in pursuance of the theory that there was no evidence of Roach's authority. What has been said will suffice for another trial.
Reversed and remanded.
THOMAS, BOULDIN, and BROWN, JJ., concur.