{
  "id": 8629288,
  "name": "W. L. POTTS v. UNITED SUPPLY CO. et al.",
  "name_abbreviation": "Potts v. United Supply Co.",
  "decision_date": "1942-10-21",
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  "first_page": "176",
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      "cite": "201 N. C., 39",
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  "last_updated": "2023-07-14T15:48:14.759571+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "W. L. POTTS v. UNITED SUPPLY CO. et al."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nDefendants predicate their application for change of venue on C. S., 464, which provides that an action against a public officer or a person especially appointed to execute his duties, for an act done by him by virtue of his office, must be tried in the county where the cause of action, or some part thereof, arose, subject to the power of the court to change the place of trial for good cause shown.\nIt is contended that the cause of action arose in Wilkes County; that as to Homer Brookshire, it is based, in part at least, on an act done by him colore officii, and that, by the terms of the statute, the action must be tried in Wilkes County. Kellis v. Welch, 201 N. C., 39, 158 S. E., 142.\nConcededly, the cause of action arose in Wilkes County. In respect of Homer Brookshire, however, it is not alleged that he participated in the conspiracy as a deputy sheriff, but as an agent and representative of the corporate defendant. This suffices to defeat the application for change of venue as a matter of right. The action is not against the sheriff for alleged malfeasance of his deputy. Lyle v. Wilson, 26 N. C., 226.\nTrue, when an officer is sued for an act necessarily done colore officii, proper venue may not be defeated by alleging that the act was done by him as an individual. Shaver v. Huntley, 107 N. C., 623, 12 S. E., 316. But this is not the present case.\nMoreover, there are cases,\u2019 or dicta, which seem to suggest that a deputy sheriff is not a \u201cpublic officer\u201d within the meaning of this section. Styers v. Forsyth County, 212 N. C., 558, 194 S. E., 305; Borders v. Cline, 212 N. C., 472, 193 S. E., 826; Blake v. Allen, 221 N. C., 445.\nOn the record as presented, the application was properly denied.\nAffirmed.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "W. H. Childs and Fred D. Caldivell for plaintiff, appellee.",
      "W. H. McElwee for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "W. L. POTTS v. UNITED SUPPLY CO. et al.\n(Filed 21 October, 1942.)\nVenue \u00a7\u00a7 lc, 4a\u2014\nIn an action in Catawba County, residence of plaintiff, for an alleged wrongful conspiracy and damages therefor which occurred in Wilkes County, against a corporation and two individuals acting as the corporation\u2019s agents, one of the individuals being described as a deputy sheriff of Wilkes County, a motion for change of venue to Wilkes County, under C. S., 464, was properly denied, there being no allegation that the acts complained of were done by the deputy sheriff by virtue of his office. Qumre, whether a deputy sheriff is a \u201cpublic officer\u201d within the meaning of this statute.\nAppeal by defendants from Alley, J., at February Term, 1942, of Catawba.\nCivil action for an alleged wrongful conspiracy and damages resulting from its execution, instituted in the county of plaintiff\u2019s residence, against citizens and residents of Wilkes County.\nThe complaint alleges that on 16 November, 1939, in Wilkes County, \u201cthe defendants, Paul J. Vestal and Homer Brookshire, the said Homer Brookshire acting and representing himself to be a deputy sheriff of Wilkes County, both of whom were acting as agents and representatives of their codefendant, United Supply Company, Inc., and within the scope of their employment, and with full knowledge and consent of their codefendant, United Supply Company, Inc.,\u201d did unlawfully and in furtherance of an illegal conspiracy, enter upon the premises of the plaintiff and take into their possession and carry away certain personal property of the plaintiff to his great injury and damage; that \u201cthe acts and conduct of the United Supply Company, Inc., Paul J. Yestal and Homer Brookshire was all the result of a collusion between them,\u201d etc.\nBefore answering and before the time for answering had expired, the defendants moved for change of venue to Wilkes County as a matter of right on the ground that Homer Brookshire is a public officer of Wilkes County, to wit, a deputy sheriff, and that the action relates to an act done by him by virtue of his office.\nThe clerk ordered the case removed, which was reversed on appeal to the judge of the Superior Court. From this latter order, the defendants appeal, assigning error.\nW. H. Childs and Fred D. Caldivell for plaintiff, appellee.\nW. H. McElwee for defendants, appellants."
  },
  "file_name": "0176-01",
  "first_page_order": 220,
  "last_page_order": 221
}