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parte, application to vacate it may be made to him ex parte, or to the same judge, or to the court upon notice. If granted by a judge, on notice, or by the court upon notice, application to vacate should also be on notice. 11

10 N. Y. Code Civ. Pro., $ 772; McMahon v. Brooklyn City Ry. Co., 20 N. Y. Wkly. Dig. 404; West Side Bank v. Pugsley, 47 N. Y. 368.

11 See explanations as to MOTIONS, Article XIV, post, paragraphs 33–36.

ARTICLE XI.

FILING AND FILE-MARKS. 1. The power over the files.

12. --- does not show papers used. 2. What is filing.

13. Amending file-mark. 3. Place of filing.

14. File-marking nunc pro tunc. 4. Time of filing.

15. Certified copy as proof of filing. 5. Papers for filing to have attor. 16. Supplying loss from files. ney's name, etc.

17. Withdrawing from the files. 6. Payment of fees.

18. Striking off the files. 7. Index of the files.

FORM. 8. Compelling to file.

(46) Notice to take affidavit off the 9. Votice of filing.

files for scandal and imper10. Filing nunc pro tunc.

tinence. 11. File-mark.

1. The power over the files. ]— The custodians of public records often accept a document for filing or record, on payment of their fees, irrespective of the right of the person offering it to have it put on the record. The duty of the clerk of a court, howerer, is peculiar in this that the files in his charge are the records of the transactions of the court and its officers; and he ought not to place any paper in its files without the sanction of authority given by law, or by the court, or by settled practice.

Neither the clerk of the court nor an attorney can amend any paper on the files of the court,12 nor take any paper off from the files, without leave of court.13

A paper of such kind as to be properly part of the record, as a pleading, belongs on the record, although adjudged bad or insufficient, 14 unless it be withdrawn by leave of court, or superseded by amendment.

2. What is filing.]— The mere coming of a document into the hands of the clerk, is not a filing, if he refuses to file it and at

12 Bowes v. Isaacs, 33 Md. 535 (judgment stricken out because it depended on the clerk’s voluntary correction of his own mistake); Hawthorn v. City of East Portland, 12 Oreg. 210, 6 Pac. Rep. 685 (holding that a clerk has no power without leave of court to change the date of his own file-mark · after filing).

13 Washburn v. Gillett, 4 Monthly L. Bul. (N. Y.) 22; Walker v. Johnson, 2 McLean (U. S.) 255; Dare v. McNutt, 1 Ind. 148 (holding that one who would give his adversary notice to produce a paper on file must get leave to have it removed). And see Mandeville v. Reynolds, 68 N. Y. 528, to effect that if a paper duly filed is not found in its place, the presumption is it is lost or destroyed.

14 Briggs v. Bergen, 23 N. Y. 162; Commercial Bank v. Spencer, 76 id. 155. The rule is different if the pleading is stricken out as sham.

once returns it, or if the person delivering takes it back, so that it cannot be found on the files. 15

To constitute filing there should be the intentional delivery of the document in a form suitable for filing, to the proper officer, or to some one in charge of his office, 16 and its receipt at his office, 17 for the purpose of remaining there. When this occurs, the fact that without the fault of the person offering it, it is not then or afterward indorsed as “ filed," 18 or put in its proper place, 19 or

15 Cushman 1. Hadfield, 15 Abb. Pr. (N. S.) 100, 52 N. Y. 653 (where a clerk, upon receiving a remittitur, was immediately served with a stav, aud at once handed the remittitur back without marking it. Walker v. Johnson, 2 McLean, 255 (plaintiff's attorney removed declaration from files).

16 Bishop v. Cook, 13 Barb. (X. Y.) 326 (where a chattel mortgage left with one in charge of a town clerk's office, who marked it “ filed," was held properly filed, although the office of town clerk was vacant).

Dodge v. Potter, 18 Barb. 193 (filing by one who was clerk in the store of the town clerk, and had charge of his office therein, held sufficient) ; Hamilton v. Beardslee, 51 Ill. 478 (to leave the paper on the clerk's desk is not sullicient).

17 A delivery to the clerk out of his office and office hours does not take effect as a filing until the clerk deposits it in his office during office hours.

llathaway v. Howell, 54 N. Y. 97, 103; Schulte v. Minn., etc., Bank, 34 Minn. 48.

A requirement that a claim should be filed in the office of a designated officer or board, is not satisfied by proof of its having been mailed, properly addressed. Gates v. The State, 128 N. Y. 221.

18 Baker 1. Henry, 63 Mo. 517 (objection that a document was not indorsed as “ filed " overruled, there being other suficient evidence of filing).

S. P., Carroll Co, v. O'Connor, 137 Ind. 622; Hohman v. Eiterman, 83 111. 92; Manhattan Co. v, Laimbeer, 21 Abb. N. C. 27; Nimmons v. Westfall, 33 Ohio St. 213.

Holman v. Chevaillier, 14 Tex. 337 (omission of the proper indorsement upon a document filed held not to prejudice rights of the parties, the court saying: “Where the law requires or authorizes a party to file it, it simply means that he shall place it in the official custody of the clerk "); Hanover Fire Ins. Co. 1. Shrader, 89 Tex. 35.

Jones v. State, 67 Geo. 240 (remittitur from Appellate Court filed, but lost before entry on minutes, and text of the opinion ordered to be copied in lieu thereof).

19 Fink v. Wallach, 109 App. Div. 718, 96 N. Y. Supp. 543 (failure of special deputy clerk of Special Term, Part II, New York county, to deliver to county clerk for filing an order of publication, and papers accompanying it, does not invalidate order, and it may be filed nunc pro tunc).

People v. Bristol, 35 Mich. 28 (where a chattel mortgage was not put in the files among other chattel mortgages, but in another pigeon-hole — was held to have been filed).

Cullen v. Miller, 9 N. . Leg. Obs. 62 (bond left with a surrogate and placed by him in a private drawer of his office instead of in its proper place, held to have been filed).

Baker v. Henry, 63 Mo. 517 (where, after destruction of the office, a document was found among the private papers of a deceased county clerk).

But the document should be such that it is capable of being placed and classified among other documents of its class, otherwise its deposit in the office of the proper officer may not be a sufficient filing. Griswold v. Sheldoni, 4 N. Y. 581, 591.

properly indexed,20 does not impair the effect of the filing, unless the statute makes such a marking or indexing essential.

3. Place of filing. ]— Papers in an action should be filed in the office of the clerk of the court in which it is pending:21 An appeal po longer removes the cause, except in the cases where a new trial can be had in the appellate court; and except in such cases, therefore, an action is, notwithstanding appeal, still deemed pending in the court below, for the purpose of filing papers,22 except those relating to proceedings in the appellate court, which its rules require to be filed with its clerk.23

In the Supreme Court papers are to be filed in the county specified as the place of trial; but in case the place of trial is changed to another county, all subsequent papers must be filed in the county to which such change is made; 24 and it is the duty of the clerk of the former county to deliver his files of papers in the action to the clerk of the latter county25 When a cause is removed from one State court to another, the clerk of the former must make a similar transfer to that of the latter.26

But the clerk is not bound to transmit such papers, except upon payment of his fees and expenses of transmission.27

A mistake in filing the papers for the commencement of an action in the clerk's office of another court from that where the action is brought is not amendable nunc pro tunc if filing was a necessary condition of the proceeding. 28

20 People v. Britsol, 35 Mich. 28 (where a chattel mortgage was not entered in the alphabetical index as required by statute).

The reason for the rule is that the party delivering the document to the officer has done all that the law requires of him, and cannot be prejudiced by the failure of the officer to do his duty. People r. Bristol (above). See a similar ruling on the effect of not indexing a deed left for record, in Mutual Life Ins. Co. v. Dake, 87 N. Y, 257, 1 Abb. N. C. 381, 384.

21 N. Y. Gen. Rule 2.

22 Andrews v. Durant, 6 How. Pr. (N. Y.) 191, 193 (setting aside a judg. ment-roll after appeal because filed in the wrong county).

23 N. Y. Gen. Rule No. 2.
24 X. Y. Gen. Rule No. 2; Curtis v. Greene, 28 Hun, 294, 295.
25 N. Y. Code Civ. Pro., & 998; S. P., Duncan v. The State, 84 Ind. 204.
26 N. Y. Code Civ. Pro., 88 319, 344.

27 N. Y. Code Civ. Pro., 8 3292; Purdy v. Peters, 15 Abb. Pr. (V. Y.) 100 (holding that a clerk entitled to fees is entitled to payment when service is requested).

28 People ex rel. Holdsworth r. Superior Ct., 18 Wend. (N. Y.) 675 (mandamus allowed to reverse proceedings founded on such amendment).

4. Time of filing.]— Where the right to file a paper in proceedings already under the jurisdiction of the court29 depends on a condition precedent, for instance a petition such as requires leave of court; or an undertaking on appeal, which should not be filed before notice of appeal, a premature filing may, if satisfactorily explained, be treated by the court as sufficient to save the right of the party, if the adverse party has not been misled to his prejudice, and the court may allow it to be indorsed, to be refiled nunc pro tunc, or to be file-marked by way of amendment.30

Where rights of priority depend on the time of filing, a delivery of a paper to the clerk in the interval between the office hours of two days cannot gain priority over another delivered at the opening of office hours on the second of the two days.31

5. Papers for filing to have attorney's name, etc.]—All papers served or filed must be indorsed or subscribed with the name of the attorney or attorneys (or the name of the party, if he appears in person), and his or their office address, or place of business.32

6. Payment of fees. ]—When a paper to be filed has to be sent by mail and the law allows a fee to the clerk filing it, it is best to send the fee, or enough to cover the amount if unknown, unless the statute or rule of court clearly requires performance of the service in advance of payment of fees. It is a general principle that in the absence of such a regulation the clerk cannot be compelled to perform such a service for which the law entitles him to fces without payment or tender at the time his service is requested.33

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29 Otherwise of filing in a case where there is no judicial proceeding pending in the court.

30 Security Co. v. Arbuckle, 123 Ind. 518; Hawthorn 13. City of East Portland, 12 Oreg, 210, 6 Pac. Rep. 685; King 1. Penn, 13 Wkly. Cin. L. Bul. 375, 1 N. E. Rep. 84. And see Zoller v. O'Keeffe, 15 Abb. N. C. 483 (holding that filing an annual report of a corporation in advance of the statute time did not impair its effect).

31 France 1. Hamilton, 26 How. Pr. (N. Y.) 180. In Zimmerman 1. Cowan, 107 Ill. 631, the court held that filing a notice of intention to contest an election was in time, though after 6 P. M., on the last day allowed by statute.

32 N. Y. Gen. Rule No. 2. See also INDORSEMENTS, post.

33 Purdy v. Peters, 15 Abb. Pr. (N. Y.) 160; Freese v. Bildenfield, 14 Blatchf. (U. S.) 402 (examiner not compellable to file testimony until his fees are paid).

N. Y. Code Civ. Pro., § 3281, forbids an officer to require payment in advance unless expressly directed or permitted so to do before rendering the

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