McClellan v. Tootle

Townsend, J. Dismissal of action. Nunc pro tunc. The appellant has filed, five specifications of error, and presents his written argument upon the same, but no authorities are cited or appear to be relied upon. The first material question was the motion to dismiss, filed before the amended answer and cross bill were filed. The affidavit of J. C. Anderson, deputy clerk, says he received through the post office some kind of paper from plaintiff’s attorney, and marked same “Filed in open court, February 7. 1898,” and the same has been lost, destroyed, or misplaced so that same cannot be found. E. S. Bessey, plaintiff’s attorney, says this was a motion to dismiss this case without prejudice, and was mailed by him February 5, 1898, from Kansas City, Mo. Was this motion to dismiss properly filed? “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.” 1 Bouv. Law Diet. p. 660. “The most accurate definition of ‘filing’ a paper is its delivery to the proper officer to be kept on file.” Beebe vs Morrell (Mich.) 15 Am. St. Rep. 288, note (s. c. 42 N. W. 1119;) Noyes vs Guy 2 Ind. T, 205 (48 S. W. 1059.) Also see 8 Enc. PI. & Prac. 923. The indorsement of the clerk is evidence of filing. Bettison vs Budd, 21 Ark. 578; Thompson vs Foster’s Adm’r, 6 Ark. 210; Oats vs Walls, 28 Ark. 244; Case vs Hargadine, 43 Ark. 145. The original motion to dismiss having been lost, destroyed, or misplaced, the same could be substituted by leave of the court, andmarked filed as of the same date the original was filed, and have the same force and effect, to all intents and purposes, as the original thereof would have been entitled. Ind. T. Ann. St. 1899, § 4219. On the 28th day of February, 1898, the motion to dismiss, filed February 7, 1898, came on for hearing. The defendant objected, for the reason that [330] on the 9th day of February, 1898, he had filed an answer and a cross bill. Section 5102, Mansf. Dig. (section 3307, Ind. T. Ann. St. 1899), provides: “An action may be dismissed without prejudice to a future action — First, by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. ” There being no cross-bill pending when the motion'to dismiss was filed, the court dismissed the case and rendered judgment against the plaintiff for costs. We think the judgment of the court in dismissing the case was correct, and it is therefore affirmed. Clayton, C. J., and Gill, J., concur.