Phillips, Goldsby & Blevins v. Beene's Adm'r

38 Ala. 248 | Ala. | 1862

A. J. WALKER, C. J.

The evidence upon which the allowance of appellants’ claim is now sought, differs from the evidence presented when the case was before in this court. — Beene's Adm'r v. Phillips, Goldsby & Blevins, 31 Ala. 312. The precise question now to be decided is, whether a verification of a claim against an insolvent estate is legally filed as required by section 1847 of the Code, when it was placed by the attorney of the claimants, within the .prescribed period of nine months,- in the box appropriated to such papers, in .the probate judge’s office, without the knowledge of. the. probate jiidge or his clerk, and was not called to the attention of either of them until alter the expiration of the .-.nine months. We deduce this precise form-ef the question from a consideration of the facts not proved,,as well as of those proved, in connection with the legal proposition, that the onus of proof is upon the .claimants.

The question, as stated, will be solved, by inquiring what is meant by filing a claim. The word file is derived from the Latin word- ‘‘filum,” which signifies a thread;; and its present application is drawn from the ancient practice of placing papers .upon a thread, or wire, “for the more safe keeping and rea!dy turning to the same.” The origin of the term indicátesvvery clearly, thafethe filing; of a paper can only be effected by bringing it to the notice of the officer, who anciently put it upon the “«string” or “wire.'” Accordingly, we find that filing a paper is now understood to consist in placing it in the proper official custody, on the part of the party-charged with the duty of filing-the paper, and the making-.,of the appropriate endorsement by the officer. — 1 Burrill’s Law Dic. 625; Tomlin‘s Law Dic., file; Bouvier’s Law Dic., file ; Holman v. Chevaillier, 14 Texas, 337 ; Marriott’s Law Dic., file. A bill in chancery is said to be 'filed, when- it is delivered to the clerk, and he states the day when it was brought into his office, numbers it, and receives it into his custody. — 1 Dan. Ch. Pl. & Pr. 454. And it is said, that when a paper is filed, it is a record. — 1 Lilly’s Prac. Register, 826. In Dr. Withermgton's case, it was said, a paper on file could “not be taken off without the consent of parliament — no, not by consent of parties,” though, by consent of parties in other cases, papers have been taken from the file.—1 Keble’s R. 458 ; 13 Viner’s Abridg. 211. . These authorities show conclusively, that a paper, not brought to the notice of the proper officer, and placed in his custody, can not be said to be filed. As was said in the case of Holman v. Chevaillier, (supra,) where the law requires or authorizes a party to file a paper, it simply means that he shall place it in his official custody. That is all that is required of him. The party cannot be prejudiced by the omission of the officer to endorse the paper filed.

Besides the authorities we have adduced, we are led by a regard to public policy to coincide with the court below in the opinion, that the verification' was not filed within the prescribed period. It would lead to many abuses and much injury to regard a paper, placed in the office without, the officer’s knowledge, as filed:

Affirmed.