| Ark. | May 13, 1907
(after stating the facts.) First. W. C. Zinnecker and J. D. Bedford contend that the judgment against them for want of answer to appellee Bedingfield’s cross-complaint can not be sustained because they were citizens of Texas, and were witnesses, giving depositions in the cause by agreement when service of process was had upon them.
The court tried the question as to whether they were served in appellee Bedingfield’s cross-action against them, and found ■that they had entered their appearance to same under the following indorsement on the original complaint, -to-wit:
“State of Arkansas
“County of Miller
“We hereby waive the issuance and service of a summons upon us in this cause, and enter our appearance To same hereby, authorizing and impowering John N. Cook to act for us as our attorney in making this appearance a matter of record.
“This April 6th, 1906.
“Wm.- C. Zinnecker,
“J. D. Bedford.”
The court found “that the appearance, having been entered herein by said defendants, to the original action, after the filing of said cross-complaint, carries with it a general appearance for all purposes in the cause.” The finding of the court was correct on this issue. The answer of appellee Bedingfield, which was made a cross-complaint against Bedford and Zinnecker, was filed December 5, 1905. It asked for judgment against them. The cross-complaint then had asked that they be brought into the cause several months before their waiver of the issuance and service of summons and entry of appearance was made, and when they did make it, the cross-complaint had brought them into the cause, and their entry of appearance “in this cause” brought them into the record on the cross-action, the same as if they had been served with process on the cross-complaint, because the cross-action was then “in this cause.” The judgment in favor of appellee Bedingfield against Bedford and Zinnecker is therefore affirmed.
Second. Appellee contended that appellant’s mortgage was not filed in the recorder’s office in such manner as to give appellee notice. Section 5407 of Kirby’s Digest provides:
“Whenever any mortgage or conveyance intended to operate as a mortgage of personal property, or any deed of trust upon personal property, shall be filed with any recorder in this State, upon which is indorsed the following words, ‘This instrument is to be filed, but not recorded,’ and which indorsement is signed by the mortgagee, his agent or attorney, the said instrument, when so received, shall be marked ‘Filed’ by the recorder, with the time of the filing upon the back of said instrument; and he shall file the same in his office, and it shall be a lien upon the property therein described from the time of filing, and the same-shall be kept .there for the inspection of all persons- interested; and such instrument shall thenceforth be notice to all the world of the contents thereof without further record.”
The mortgage of appellant under the proof in the case was neither filed “for record,” nor was it “to be filed, but not recorded” before -appellee’s lien attached. It was the purpose of appellant, as the proof shows, to have its mortgage recorded. 1-t sent the instrument to the county clerk, supposing that he was the recorder, with proper directions to have the mortgage filed for record, in the letter to this officer. But the undisputed evidence by the recorder is that this letter and these instructions did not reach -him. On the contrary, he says -the directions he received were, “Here is a mortgage to be filed, but there is no money with it.” Taking this to be an indication that the mortgagee wanted the instrument filed but not recorded, the recorder waived his fee for filing and proceeded to do the “usual things with reference to filed mortgages.” But these “usual things with reference to filed mortgages,” which the recorder did’ were without any directions whatever from the mortgagee; and, if they had been directed by the mortgagee, were not in the manner provided by the statute, and did not preserve the statutory lien “for filed mortgages.” State v. Smith, 40 Ark. 431" date_filed="1883-05-15" court="Ark." case_name="State v. Smith">40 Ark. 431; Case v. Hargadine, 43 Ark. 144" date_filed="1884-05-15" court="Ark." case_name="Case & Co. v. Hargadine">43 Ark. 144; Price v. Skillern, 60 Ark. 112" date_filed="1895-01-05" court="Ark." case_name="Price v. Skillern">60 Ark. 112. The recorder took the mortgage for “filing,” but not for recording. Fie construed this to be the instructions of the mortgagee, and therefore did not accept the mortgage for record. “A chattel mortgage filed in the recorder’s office with directions not to record it is not filed for record within the meaning of the statute, and is no lien upon the property as against strangers to to it.” Brown v. Fassett, 37 Ark. 507" date_filed="1881-11-15" court="Ark." case_name="Bowen v. Fassett">37 Ark. 507.
In Dedman v. Earle, 52 Ark. 164" date_filed="1889-05-15" court="Ark." case_name="Dedman v. Earle">52 Ark. 164, the mortgagee sent his mortgage to the recorder by an agent with instructions to the recorder that the mortgage was to be filed but not recorded. This court in that case held that the placing of a mortgage in the hands of the recorder with verbal instructions to file-but not to record it is not a filing for record. And where a mortgage thus left with the recorder was filed and registered under directions given on a subsequent day, the mortgagee acquired no lien by -its filing prior to the time when the instruction to record it was given. In such case it was of no effect to mark the instrument filed as of the day on which it was handed to the recorder. In order that a mortgage may become a lien on personal property against strangers without being filed for record, as provided for in Kirby’s Digest, § 5407, the words, “This instrument is to be filed but not recorded,” or words of a.similar import, must be indorsed upon it, and signed by the mortgagee, his agent or attorney; and it must then be filed with the recorder. Instructions 'given to his agent, but not delivered to the recorder, were of no avail, as the recorder oould only be governed by the instructions he received. • That case rules this and shows that appellant’s mortgage was not good, either as a mortgage “for record” or a “filed mortgage,” before the 25th of November, 1905, when the mortgage was duly placed of record. But in the meantime, April 22, 1905, the appellee had filed with the recorder his mortgage duly indorsed: “This instrument is to be filed but not recorded,” sugned by appellee, and had thus preserved, from that time, whatever lien the mortgage gave him.
Appellee has cited numerous authorities to show “that it is within the power of one member of a partnership, acting in good faith, to make a valid chattel mortgage of all the partnership property to secure partnership indebtedness.” Settle v. Hargadine, 66 Fed. Rep. 850. This is not questioned by appellant, and is well established by the authorities. See cases cited in appellee’s brief.
The negligence through which appellant lost its lien was entirely traceable to appellant or its agent, the county clerk, and not to the recorder. The recorder could have refused to record the instrument sent him by appellant, even if appellant’s letter to the county clerk with instructions to file for record had been delivered to the recorder, for there were no fees for record tendered with the instructions. Kirby’s Digest, § 3499-
Appellant with due diligence of inquiry should have received the mortgage back within a short time with a certificate from the recorder showing when and where the mortgage had been recorded. Kirby’s Digest, § 6844. But a court of equity has nothing to do with the questions of diligence or negligence and the balancing of equities where one party has, and the other has not, complied with the plain requirements of the registry laws for the preservation of liens. It is unnecessary to pass upon the various other questions presented.
The decree is affirmed.