In re Lewisohn

OOLLIEE, J. Certiorari: filing1 of declaration: order nunc pro tunc: jurisdiction. Certiorari. The writ of certiorari applied for in this case is not in any way in aid of the appellate jurisdiction of this court, but to have reviewed the records of two causes in the district court of Santa Ee, and to have set aside a nunc pro tunc order in each, as being made without jurisdiction. The nunc pro tunc order in one case is in identical language with that in the other, and both were made the same day.' After entitling the case, the order reads as follows: “It being made to appear to the court that plaintiffs left with the clerk of this court the declaration in the above cause on the evening of May 21, 1895, and that it was not filed by the clerk for the reason that plaintiffs did not pay the advance fee as required by law, and that such fee has been paid at this date, it is ordered that the clerk file said declaration as of the date of May 21, 1895; and it is so ordered. May 24, 1895. N. B. Laughlin, Associate Justice,” etc. It is to be noted that this order recites that the declaration had been left with the clerk, and that the advance fee required by law had in fact been paid, and there is no averment in the petition for certiorari in conflict with these recitals. It should be assumed, then, that both the declaration and the advance fee were in the hands of the clerk when the order was signed. . Section 1836 of our Compiled Laws provides that “it shall be' the duty of the clerk when any paper is filed in his office immediately to enter on the back thereof his certificate of the day on which it was filed.” Therefore it appears that the suitor delivering to the clerk a paper which should be filed in his office files same, and the clerk’s certificate on the back thereof is merely the evidence of the filing. This appears still more clearly by what follows in the same section. If the clerk neglects to place his certificate on the back of the paper the court may, in its discretion, “guided by the justice of the case,” by an order nunc pro tunc, direct that the certificate be entered. Here is an express statutory provision that, whether a paper is marked “Filed” or not, a nunc pro tunc order may be made' in reference to the same. The statute considers a paper left with the clerk for filing as a paper in the case, and, if it is, the court has jurisdiction to act in regard to the same. Section 1867, Oomp. Laws, also, shows that if a declaration or a bill is left with the clerk with the intent that process shall immediately issue thereon, that makes the commencement of an action, and that such intent is to be presumed. Plaintiffs’ attorney left with the clerk the declarations on May 21st, and the advance fee afterwards; all prior to the signing of the nunc pro tunc order. Whether there was error in the nunc pro tunc order can not be considered by us, but only whether or not there was jurisdiction to make the order. We think there undoubtedly was jurisdiction, and this writ should be discharged. We refrain from passing upon the question whether or not this writ, not being in aid of the appellate jurisdic7 0 x x o tion, can legally issue to the district court, as it is clear that there was jurisdiction to make the order sought to be vacated. An order should be entered discharging this writ, and it will be so ordered. Hamilton and Bantz, JJ., concur.