Lowry v. Tullis

EiSHER, J., delivered tbe opinion of tbe court. This was a motion in tbe Circuit Court of Simpson county to quash an execution, on the ground that it was not issued by the clerk of said court. Tbe facts as disclosed by the record are as follows: — Mendenhall, who issued tbe execution, was duly elected at the November election, in 1855, clerk of said court, and was regularly commissioned and qualified as such. Being absent at tbe June term, 1856, of said court, tbe presiding judge declared tbe office “vacated,” and appointed another person as clerk. Mendenhall returning soon thereafter resumed tbe duties of tbe office, and issued tbe execution in question. Tbe court below not considering him tbe clerk of tbe court, quashed tbe execution. The court was permitted under tbe provisions of tbe statute to make a temporary appointment during tbe absence of tbe clerk; but such appointment could not be valid, or continue longer than tbe clerk elected might choose to permit it to continue. Tbe court could not by an ex parte proceeding, deprive tbe clerk of bis office; and while tbe court might declare that there was a vacancy so as to justify a temporary appointment, yet such order could only be operative so far as to give validity to tbe acts of tbe person so appointed, and not to deprive tbe party rightfully entitled, of tbe office. [148] We are .therefore of opinion that the execution was issued by the person legally in the office of clerk of said court, and that the order quashing the execution is erroneous. Judgment reversed, and motion overruled.