123 Ga. 879 | Ga. | 1905
The code provides that actions upon instruments under seal “ shall be brought” within twenty years after the right of action accrues. Civil Code, § 3765. There is no substantial difference between bringing a suit, and commencing a suit; and the section may be read as if it had said suit shall be commenced within twenty years. The Civil Code, § 4973, provides : “ Upon every petition the clerk shall indorse the date of its filing in office, which shall be considered the time of the commencement of the suit.” Obviously the proper construction of this section is, not that the indorsement of the date of filing by the clerk, but the actual date of filing, is to be deemed the time of the commencement of the suit. And there is a very substantial difference between the two things. The clerk may write an entry of filing on a petition, and yet not actually file it in his office. The entry of the clerk is evidence of filing, but not necessary or conclusive evidence of that fact. “A paper is said to be filed, when it is delivered to the proper officer, and by him received, to be kept on file. Peterson v. Taylor, 15 Ga. 483, quoting from 13 Vin. Abr. 211. See also Floyd v. Chess-Carley Co., 76 Ga. 752 (1); Laslie v. Laslie, 94 Ga. 721 (c); Adams v. Goodwin, 99 Ga. 138. Nor will notice to the opposing party that a particular pleading will be relied on at the trial dispense with an actual filing of the paper in the clerk’s office. McDougald v. Banks, 13 Ga. 451. Even the actual filing of the petition will not be regarded as the commencement of the suit, unless followed up by proper service. McClendon v. Phosphate Co., 100 Ga. 219; Florida Central R. Co. v. Ragan, 104 Ga. 356; Nicholas v. Assurance Co., 109 Ga. 621. “If there is no service, the plaintiff can not remain in
The law contemplates that when a pleading is filed in the clerk’s office, it becomes an office paper of the court in which it is filed, and the party filing it loses control over it in so far as the regular procedure usually pursued in such a case is concerned. A paper filed in the clerk’s office must be allowed to follow, without interference from the parties, the usual course of legal procedure, and a party who interferes does so at his peril. If he prevents that being done which is usual and proper, he can not thereafter claim a benefit which would accrue only if regularity had been observed. A plaintiff can not hand a petition to the clerk with instructions to make an entry of filing on it and withhold it from service until further instructions, and afterwards contend that the petition was actually filed when the entry of filing was made. By such conduct he ties the hands of the clerk, makes him merely his agent, deprives him of all official relation to him and the transaction, and official relations do not arise until he removes the bonds. A petition-to be filed must be lodged with the clerk, with the understanding that the usual procedure is to be followed, that is, process issued and service perfected. The defendant has no legal notice of the suit until served with a copy of the petition and process; and to make such notice relate back to the time of the commencement of the action, the plaintiff must really commence his action, without any reservation as to the time when service shall be perfected. The filing of the petition must be unequivocal and bona fide, and it must not be lodged with the clerk to be held by him until the plaintiff determines whether he really intends to sue or not. A suit, with the right reserved in the plaintiff to say whether it shall really become a suit, is a legal paradox, and one for which we are satisfied there is no authority* of law. In Maddox v. Humphries, 30 Tex. 494, it was held: “Where the plaintiff filed a petition with the clerk, and endorsed it ‘the clerk will not issue upon this until further
Judgment affirmed.
