Perry v. Friedin, 17 Ga. App. 417

Perry v. Friedin

17 Ga. App. 417 | Ga. Ct. App. | 1916

Wade, J.

The ruling announced in the headnotes is perhaps sufficiently clear to dispense with further explanation, but a few additional words may not be inapropos. The Supreme Court held in the case of Lovelady v. Hockenhull, 58 Ga. 469, that “a certiorari not marked ‘filed in office,’ nor ever in the office of the clerk of the superior court, nor ever in the possession of the clerk at all', is not an office paper so as to be established by copy, instanter, on motion, under section 2980 of the Code” of 1873 (Civil Code of 1910, § 5312). And it was further held that, “though Sanctioned by the judge at chambers and handed to the plaintiff, it is his private property until it gets to the clerk, and, if mislaid or lost, it can only be established by copy, as any other private property belonging to him.” It can not be said that a mere casual deposit of the paper in the office occupied by the clerk of the city court of Oglethorpe, at a time when neither the clerk nor any other person acting for him was present to receive it, would place the paper in a legal sense in the office of the clerk ór in his possession. It would be otherwise, of course, if the paper were actually placed in the hands of the clerk or his deputy, or perhaps even if left in his office in the hands of some person then in charge of the office for the clerk; but merely to leave such a paper somewhere in'the office occupied by the clerk would not place it in his possession, as it might never be brought to his attention, and the paper could not in any sense be regarded as an office paper. As we understood the ruling in Lovelady v. Hoclcenhull, supra, the suggestion therein that leaving a paper in the office of the clerk might permit of its establishment instanter, under section 5312, supra, means leaving the paper with some one in the room of the clerk, and not merely depositing the paper somewhere in the office, without bringing it to the attention of some person in authority, — the clerk himself or one of his subordinates. •

The affidavit of the clerk attached to the motion to establish a copy in lieu of the lost original does not even suggest that the *419lost paper was ever at any time either in his possession or in his office, and it expressly declares that the paper was never bled. It is true, the affidavit states that the original paper “can not be found and has been lost or destroyed,” but it does not appear that it was lost or destroyed after being deposited in the office of the clerk with any person therein, or after having been placed in the possession of the clerk himself. The original petition for the establishment of the copy alleges, as already mentioned, that the bill of exceptions was deposited in the clerk’s office to be bled. It does not assert that it was deposited with the clerk or with any person acting for him or occupying his office at the time the deposit was made, nor does it affirmatively show that the paper was left in the office on deposit and-was not withdrawn therefrom and thereafter lost or destroyed (before filing) by some person other than the clerk or his employees.

It may be that the application of this ruling will work a hardship upon the plaintiff in error, but it is most important to preserve intact the orderly methods of procedure in the various courts, and only by the enforcement of fixed rules can this result be accomplished. Writ of error dismissed.