38 Tex. 196 | Tex. | 1873
Article 1473, Paschal’s Digest, provides that “all motions for new trials, in arrest of judgment or to set aside a judgment, shall be made within two days after the rendition of verdict, if the term of the court shall continue so long.” And Article 1453 further provides that “ there shall be a motion docket, to be kept by the clerk, in which he shall enter all motions filed in the court.” The manner of filing all papers in the court, and the requisites necessary to constitute a filing, are specifically defined in Article 1445, Paschal’s Digest. From this it is clear that no paper can be considered filed in a cause unless the clerk shall have endorsed thereon the day on which it was filed and signed his name thereto. It is not absolutely necessary that the clerk, when he marks a paper filed, should be in the court room or his office in order to perfect the filing, provided the same be done in good faith by the clerk, and not in such a manner or under such circumstances as to work an injury to other parties.
The statute cited makes it the especial duty of the clerk, where he has filed a motion, to enter the same in a motion docket, to be kept by him for that purpose. He should in no instance allow a motion filed by him to go out of his possession until the same has been entered on the motion docket, and a failure of the clerk to perform any duty expressly required of him by the law should not be permitted to work an injury to other parties.
The fact that the attorney who presented the motion wished to take the same, with the other papers of a cause, out of the office for examination, is no excuse for the clerk’s failure to make the required entry in his motion docket. Attorneys employed in the prosecution or
In the case at bar the verdict was rendered on the twelfth day of the month, and on the night of the 13th motions for a new trial and in arrest of judgment were marked filed by the clerk, out of his office, who immediately went to his office and delivered the other papers in the cause to the attorney who presented the motions, but failed to enter the motions on the motion docket until the morning of the 15th. We think the motions were filed in time, and had the clerk performed his duty no question in regard to the same would now have been raised.
There is no improper act or motive imputed to the attorney in taking the papers from the office, by the affidavit of the clerk or any other person. And we are of the opinion that the court erred in refusing to hear and consider the same. There are two records in this case, but from the imperfection of both, we are unable to form any judgment in regard to the merits of the cause attempted to be presented ; and for the reasons herein indicated, the judgment is reversed and the cause remanded for a new trial.
Revebsed and eemanded.
