18 Wis. 199 | Wis. | 1864
By the Court,
This was an action to recover the possession of certain lumber alleged to be the property of the respondents — plaintiffs below — and taken from their possession by the defendant. The defendant, in his answer, denied that the lumber was the property of the plaintiffs, and stated in effect that he, as sheriff of Fond du Lac county, seized the same as the property of one Arthur, by virtue of two writs of attachment against said Arthur.
It appears from the record that after the jury had retired, they returned into court and asked a further instruction as follows : “ If there is no proof that this defendant was sheriff “ of Fond du Lac county at the time of taking the lumber, “outside of the record in the attachment suits which have “ been given in evidence, is the fact that his name appears in “ said record and returns to the writs of attachment as sheriff, “ sufficient evidence from which the jury can find that at that “ time he was such sheriff?” In reply the court stated “ that such writs of attachment and returns thereon alone would not be sufficient evidence that he was such sheriff at that time.” The defendant excepted to this instruction, 'ánd. asked the court to instruct the jury that the writs of attachment and the returns thereon were prima facie evidence that the defendant
It is a well settled principle of law, that courts will take judicial notice of the appointment or election of marshals and sheriffs, as well as other executive and administrative officers, and will treat them as being officers de facto when the validity of their acts is called in question in a collateral manner. 1 Greenl. Ev., § 6; 21 Ill., 215; 5 Wis., 313; 1 Head, 40; 12 Ind., 330. In a quo warranto, of course, the right to the office itself is the point in controversy. There the court presumes nothing, and the right is determined by proof like any other question of fact. But in other matters and for some purposes courts will certainly take judicial notice of the official character of a sheriff, and do not require any proof of his appointment or election. Whether this rule properly extends to a case like the present, where the person assuming to be sheriff is a party to the record, and his authority to seize property upon legal process as such is called in question, we shall not stop to determine. For it appears here that the plaintiffs .all , the
The judgment of the circuit court is therefore reversed, and a new trial ordered.