Ford v. Brooks

On Motion to Dismiss. The opinion of the Court was delivered by ■ Bermudez, C. J. The defendants and appellees move to dismiss this appeal on the ground of the incompleteness of the transcript by the fault of the appellant, and the insufficiéncy of the Clerk’s certificate. The defense is, that the motion was not filed within three judicial days after the transcript was filed. ; [152] The motion is loose in the transcript and bears no clerical endorsement. The transcript was filed on the 21st of April, 1831. On the 3d of August following, counsel for the appellees made an affidavit with a. view to show that on the 21st of April he ¡landed the. motion to dismiss to one of the Clerics in the office—which one he did not remember. The Court takes notice ex-offieio, that more than three judicial days had elapsed between the 2lst of April and the 3d of August, when the affidavit was filed. Apart from the circumstance that the affidavit does not identify the motion and is irregular, and is fatally vague and defective, we do not feel authorized to consider that the motion was filed within the time appointed by law, and we must ignore it. It is indisputable that a motion to dismiss an appeal, based upon the grounds upon which the present one rests, must be made and filed within the three judicial days following that on which the transcript itself is to be filed. H. D. 72; L. D. 45, (8.) Filing, vel non, is the question to be determined. First. It is necessary to ascertain what meaning the law attaches to the word; what definition has been given it in other States. Abbott, L. D., says, that “ to file, and filing, mean the act either of the party in bringing the paper and depositing it with the officer for keeping, or the act of the officer in folding, endorsing and putting up the paper.” Vol. 1, p. 496, Vo. File. But, according to the Supreme Court of Indiana, which had previously decided otherwise in a criminal case, 2 Ind. 91, filing is effected by delivering the paper, endorsed with the title of the cause and the attorney’s name, to the clerk of the court, who marks it “ filed,” adding the date, and deposits it under the proper head among the papers or files of his office. The mere leaving the instrument with the clerk íb not sufficient, unless the purpose of so leaving it is stated and not left to inference. 6 Ind. 309, Lamson vs. Falls. “ Filing,” according to the Supreme Court of Iowa, imports more than a mere reception into the custody of the clerk of the court. His endorsement is necessary. The Supreme Court of Missouri says also, that “ filing,” as used in a statute regulating the time of filing bills of exception, comprehends not merely the endorsement to that effect, but the entry by the clerk on the record that the bill has been allowed. 55 Mo. 301. Different rulings can be found that the endorsement is unnecessary. 2 Ark. 123; 2 Blatch. 248; 13 Barb. 329; but we do not understand that there existed, in the States in which they were made, provisions analagous to those of Article 176 of our Code of Practice, which to our mind is decisive of the question. It provides that “ the petition, [153] together with all the annexed documents, must be delivered to the clerk of the court to which it is addressed, who shall receive it and endorse immediately the date of the day, month and year when he received it.” See also, C. P. 776. What difference exists between the filing of a petition and that of any other proceeding is not discernable. Ever since 1805, such has been the law in Louisiana. See Acts of 1805, ch. xxvi. In White vs. Bank, 6 An. 162, it was held, in pari materia, that it is not enough for a person claiming a mortgage or privilege, to deposit the acts to be recorded with the recorder of mortgages. He must see that they are recorded. 7 An. 67. The omission on the part of the officer to do his duty may subject ■him to damages, where any are suffered, but it surely cannot have the effect of a registry and thus prejudice persons acquiring rights by such dereliction of duty. 26 An. 678. In Stafford vs. Harper, 32 An. 1078, this Court has held that litigants who introduce written evidence should not only produce it, but see that it is properly noted and filed, in order that they may form part of the record and be in a condition to be considered by the Court. Had the movers presented themselves at the clerk’s office, within office hours, and not found the Clerk or any deputy having authority to receive and file the motion, thus doing everything in their power, a different case might have been presented. 24 An. 333. Lex neminem cogit ad impossibilia. But such is not the fact presented. The affidavit, if it could be considered, would show that the motion was left with one of the Clerks, which one, affiant neither names nor assumes to be able to name. Prom .the foregoing, it clearly results that the filing of a document consists both in the handing of it to the clerk and in the endorsement of it by that officer, with the date on which it came to his hands. It is of time immemorial usage, that besides, the clerk or his deputy attests the endorsement under his official signature. Second. To prove that a paper has been filed at a particular time, it should itself be produced as the best evidence, of the fact. It is only when it has been lost or destroyed that secondary testimony-is allow-, able to establish the fact and the date of the filing. The affidavit is, therefore, irregular and inadmissible. To rule differently would be to sanction and inaugurate a loose and vicious practice, likely to prove fruitful of abuse. It is true that in this case the affidavit is not contradicted, nor could it be¿ owing to its vagueness and uncertainty. No one could take a [154] counter affidavit, who had not been named as the person or officer to whom the motion was delivered. ' Had it been, how could this Court pass upon the question of fact, having no original jurisdiction? Mights claimed by litigants, as growing out of judicial proceedings, mtist appear from the face of an authentic record and cannot be allowed to rest upon matters in paiis. In a court of record, that which the law requires to be put in writing and which is not so made to appear, must be considered as having never been done. 6 An. 707; 21 An. 649; 33 An. 140. Me non apparentibus et de non existenti.bus, eailem est lex. It is, therefore, ordered that the motion be dismissed with costs. Justices Todd and Fenner dissent. •