Behind the skirmish line developed on this appeal, one senses the rumble of real battle. But the case here cannot be said to have reached that decisive stage. ¥e can only consider the stipulations of the parties as to the facts as bearing upon the motion to dismiss, within the frame of the action in which it is made — -within its form, purport, and theory. It cannot be converted into a quo warranto proceeding to try the title to office, or to settle the more fundamental differences we find to exist between the parties.

Whatever may be the status of English as a de jure officer, and upon this it is not within the scope of our review to pass, we have no doubt, upon the facts presented and applicable principles of law, he was, at the time of issuing the summons in this case, de facto Clerk of the Superior Court of Madison County, acting under color of his -original appointment under authority of the cited statute, and was in the actual discharge of the duties of the office, with his right to incumbency not adversely determined in any competent judicial proceeding. As such de facto officer his acts, of the nature involved in this motion, have a recognized validity in law, growing out of public necessity, and cannot be collaterally attacked. 43 Am. Jur., Public Officers, ss. 470, 471; Berry v. Payne, 219 N. C., 171, 13 S. E. (2d), 217, and cases cited, p. 177.

We do not understand the appellants to contend that the summons issued by English is void because issued in his own behalf. Issuing the summons is itself a ministerial act as to which the clerk is not disqualified by his personal interest. Evans v. Etheridge, 96 N. C., 42, 1 S. E., 633.

Judge Rousseau stated no grounds for his refusal to dismiss the case. However, the judgment was proper and is

Affirmed.