Lovelady v. Hockenhull

Jackson, Judge. This was a motion to establish a lost certiorari as an office paper. The certiorari had never been filed in the office of [470] the clerk of the superior court of the said county of Pick-ens, or been in his possession, but had been sanctioned by the judge of the superior court, and- was handed by plaintiff’s attorney to one Faulkner with instructions to hand the same to the clerk of said court; and it further appears, that said Faulkner handed said certiorari to a small boy — son of Mr. Win. Tate — with instructions to deliver the same to his father (Mr. Tate), to be by him handed to said clerk. It further appears that said boy lost the said certiora/ri. The motion to establish said copy as an office paper was resisted by counsel for plaintiff in error on the ground that it was not an office paper, it never having been filed in the clerk’s office, or placed in the custody or possession of the clerk. The court overruled the objection, and passed an order establishing the copy, in lieu of the lost original certiora/ri, as an office paper. The defendant excepted, and the single question is, was the certiora/ri, under these circumstances, an office paper? If an office paper, it could have been established in this summary proceeding ; if not, as a private paper, it could not — Code, §§3980, 4052. This paper never reached the office of the clerk ; it was never marked “ filed in office ” by him; indeed, it was never in his personal possession, or in the office of the court at all. How, then, could it be an office paper ? Moreover, it was the fault of the party complaining, himself, that it never reached the court or the clerk. If he entrusted it to those who took no reasonable care of it, it is his fault — vigilantibus non dormimtibus, etc., is applicable to all such confiding litigants. Judgment reversed.