74 Miss. 221 | Miss. | 1896
delivered the opinion of the court.
The question which lies at the threshold in the decision of this case is whether the bill, of appellant was filed, within the contemplation of law, on May 5, 1892. The facts are these: On May 5, 1892, appellant’s counsel took the bill and the exhibits in one cover to the chancery clerk, and had him indorse on the bill the word “ filed,” etc., and the clerk made a corresponding entry in the general docket, and prepared a regular court wrapper, and put it around the papers. But counsel immediately took the bill and exhibits back to his office, telling the clerk that he did not wish process issued then, but not giving him any reason for not issuing process. The clerk charged the counsel with the papers in his attorney’s docket. The bill was kept by counsel in his office until the ninth of May, when he returned the bill, and process was issued and served on the tenth. In the meantime, on May 7, 1892, counsel for appellees took their bill to the clerk of the chancery court, and it was filed on that day, and process issued and served that day. Said counsel had, on the fifth of May, gone to the clerk’s office, to see what bill, if any, had been filed, and was told a bill had been filed by counsel for appellant, and was shown the entry on the general docket, and informed that the papers were at the office of appellant’s counsel: These are all the facts bearing on this question.
The code of 1892, § 463, provides that the clerk shall not suffer any paper so filed to be withdrawn, but by leave of the chancellor, and then only by retaining a copy, to be made
Anderson’s Law Dictionary defines the noun ‘ ‘ file ’ ’ as follows: ‘ ‘At common law, a thread, string, or wire upon which writs or other exhibits are fastened for safe-keeping and ready reference. ” And the definitions of Webster’s International Dictionary and the Century Dictionary are to the same effect. The verb Anderson thus defines: “To leave a paper with an officer for action or preservation;” and he adds: “ In modern practice, the file is the manner adopted for preserving papers. The mode is immaterial. Such papers as are not for transcription into 'records are folded similarly, indorsed with a note or index of their contents, and tied up in a bundle — afile.” Webster quotes Burrill, as follows: “To file a paper on the part of a party is to place it in the official custody of the clerk. To file on the part of the clerk is to indorse upon the paper the date of its reception, and retain it in his office, subject to inspection by whomsoever it may concern. ’ ’ Mr. Freeman, in a learned note to Beebe v. Morrell (Mich.), 15 Am. St. Rep., 295 (42 N. W., 1119), thus sums up: “Filing consists simply in placing the paper in the hands of the clerk, to be preserved and kept by him in his official custody as an archive or record, of which his office becomes thenceforward the only proper re
In Pfirmann v. Henkel, 1 Ill. App., 145, cited in 7 Am. & Eng. Enc. L. (1st series), 962, the case was this: “A certificate and affidavit required to be filed under a limited partnership act, were sent by a messenger to the clerk’s office, and there presented for the purpose of being filed. The deputy clerk, to whom they were presented, instead of retaining them, by mistake added a certificate of the official character of the notary before whom they were acknowledged, and returned them to the messenger, by whom they were carried away. Several months afterwards they were returned to the county clerk’s office and properly filed. As against a creditor whose debt accrued before the papers were returned to the clerk’s office, it was held that the first presentation of them did not constitute a filing. £ £ Filing a paper, ’ ’ said the court, £ £ ex vi termini, means placing and leaving it among the files. The memorandum indorsed by the officer in whose custody it is placed is merely evidence of the filing, and not the filing itself.”
We close the citation of authorities with the result in modern practice, as stated by Mr. Freeman in the note above referred to (page 294, vol. 15, Am. St. Rep.): “The word £file’ is
In Christian v. O'Neal, 46 Miss., 672 (a case of an attempt to enforce a mechanic’s lien, in which, as in a chancery suit, the filing of the petition is the commencement of the suit), it was said: “If a petition was not on file when this or the writ of June, 1861, was issued, suit was not begun.”
We have quoted thus largely from the authorities, because the determination of this point will be decisive of the case. It is clear that marking the paper ‘‘ filed ’ ’ is not filing it. A paper may be marked filed, and yet not be in fact filed; and a paper may be in fact filed, though not marked filed. And the entry on the general docket does not constitute filing. All these indorsements of the clerk are evidence, but not conclusive evidence, of a filing. Whatever the nature of the paper, it can only be filed by delivering it to the proper officer, to be by him received and dealt with in the manner usual with the particular character of paper. If a deed, for example, or other paper required to be recorded, it must be kept by the clerk until recorded; if-.any paper, in respect to which a statute requires the original or a copy to be filed, the original may not be withdrawn till a •copy has been filed. If a bill in chancery, it must be delivered to the clerk, to be by him received, indorsed, and dealt with in the manner usual with such bills. It must be delivered and recorded with the purpose of having process issue in due course.
It is doubtless true, as suggested by learned counsel, that it is the custom for attorneys to take out pleadings, giving their receipt, and usually no question would arise, as the instances are rare in which the priority of a lien is determined by the filing of a particular pleading. But we desire to be understood as deciding nothing on this precise point, resting our decision in this case on its own facts. We cannot hold that what was done with this bill constituted a filing of it, under the general rule as to the filing of pleadings, nor under the terms of this statute, without deciding that the mere marking upon a pleading of the word ‘ ‘ filed, ’ ’ etc., and a docket entry thereof, and
Affirmed.