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7. Index of the files.]— By the New York rule the clerk is required* to keep a book, indexed, in which all papers filed, the orders made and the steps taken therein, shall be indicated under the title of the action or special proceeding, with the dates of the several proceedings.

8. Compelling to file.]— The court will compel a party to file the affidavits used by him on a motion on notice, and doubtless have power to do so with respect to affidavits a party has used with the court for any purpose. And the objection that the affidavits may be used to criminate him, or that the motive of the adverse party in seeking to compel their filing is to found a prosecution for perjury, is not an answer to the application. 35

9. Notice of filing. ]— In the absence of any regulation requiring notice, or any specific reason making it good policy to charge the adversary with express notice, he who files a paper, even in compliance with an order requiring him to do so, is not bound to give notice of the fact of filing 36

10. Filing nunc pro tunc.]— Except in those cases where the filing was necessary to the acquirement of jurisdiction, or the statute or nature of the act makes the filing an imperative condition of the act done, the court has power, in a proceeding in which it has jurisdiction,37 to allow a paper to be filed nunc pro tunc, when good cause is shown.28

service; but it is not clear that this entitles an attorney to credit for fees of filing. If the statute requires the filing fee to be paid in advance, the clerk cannot waive the requirement where the fee is not his private emolument. State v. Chicago, etc., R. Co., 145 Ind. 229.

34 N. Y. Gen. Rule No. 7.

35 Anon., 5 Cow. 13; Sinnott v. First Nat. Bank, 34 App. Div. 161, 54 X. Y. Supp. 417. Before an order is entered by the clerk, the papers used or read on the motion on either side must be filed. N. Y. Gen. Rule No. 3. Under Code Civ. Pro., § 1304, a party or person entitled to take an appeal from a judge's order may compel the filing of the order, and the papers upon which it was founded, under penalty of having the order revoked and an nulled. In case of a pleading, notice to file should first be given, and if disregarded an ex parte order may be taken. Langbein v. Gross, 14 Abb. Pr. (X. S.) 412; N. Y. Code Civ. Pro., § 824.

36 Douoy v. Hoyt, 1 Code Rep. N. S. (N. Y.) 286. But where the filing of an undertaking is to act as a stay of proceedings, notice of its filing must be served as well as a copy of it. N. Y. Code Civ. Pro., § 1334.

37 Butler t. Smalley, 101 N. Y. 71; Galloway v. McKeithen, 5 Ired. (N. C.) 12.

38 N. Y. Code Civ. Pro., 88 721-724, 783–785. For convenient precedents for this practice see Renouil v. Harris, 2 Sandf. 641 (omission to file answer as part of a judgment-roll cured); 8. P., Cook v. Dickerson, 1 Duer, 679, 686,

Where consent is necessary to be shown by the record, an entry by the clerk showing that the adverse party was present when the court gave leave to file nunc pro tunc, does not show consent."

11. File-mark.] — The clerk's file-mark, indorsed on the paper, is the appropriate evidence of the fact and time of filing; 40 but it is not essential,41 and when it is lacking, the fact and time of tiling may be proved aliunde.2

A file-mark on the outside fold of two papers firmly affixed to each other, or documents written on the same paper, is presumptive evidence of the filing of both.43 And proof of the filing of a document raises a legal presumption of the filing with it of a subsidiary document referred to in it as annexed, though there be 10 file-mark on the latter. 44

12. – does not show papers used.] – The ordinary file-mark is not sufficient to show that the paper was used on the motion or hearing for which it may have been prepared.45 For this purpose, if the paper be not referred to in the minutes or in the recitals of the order or decree made thereon, it should be indorsed as having been read on the motion or hearing.

Blashfield v. Smith, 27 Hun (N. Y.), 114 (judgment-roll allowed to be filed nunc pro tunc after docketing and execution).

Short v. May, 2 Sandf. 639 (filing copy pleading, instead of original, when equired by order of court); Dieckerhoff 1. Ahlborn, 2 Abb. N. C. 372 (omis. sion to file undertaking on arrest); Kloepping 1. Stellmacher, 7 Vr. (N. J.) 176 (omission to file affidavit of service of summons).

39 State v. Duckworth, 68 Mo. 156 (exceptions in criminal case).

40 There is an exception as to pleadings in some jurisdictions where entry on the record or docket is required as notice to the other party. See Padden v. Moore, 58 Iowa 703; Duke v. Crabtree, 5 Ark. 478.

Where an admission of service was indorsed underneatn a file-mark, the service and filing were presumed to have been of the same date. People v. Ah Yute, 56 Cal. 119.

41 State v. Ritter, 9 Ark. 244; Conant's Est., 43 Oreg. 530. Contra, Love v. McIntyre, 3 Tex. 10; Garden City Ins. Co. 1. Stavart, 79 Ill. 259.

42 Bishop 1. Cook, 13 Barb. 326, 329; Lessee of Haines v. Lindsey, 4 Ohio St. 88, 90; Nimmons v. Westfall, 33 id., 213; King 1. Penn, 13 Wkly. L. Bul. 375; s. C., 1 N. E. Rep. 84; Burns v. Ingersoll, 6 Ky. L. Rep. 737; S. P., Bryant v. Bank of California (Cal., 1885), 7 Pac. Rep. 128; Simpson v. Minor, 1 Blackf. (Ind.) 229.

43 Schott v. State, 7 Tex. App. 616 (in such case the court said: “It would be unnecessary that the clerk should indorse more than one file-mark, and that upon the paper which happened to be on the outside").

44 Whitworth 1. Malcomb, E2 Ind. 454.

45 Johnson v. Muir, 43 Cal. 542 (affidavits merely indorsed as “ filed ” not considered by the court). “The affidavits should be identified by the indorsement of the judge or clerk made at the time of the hearing that they were read or referred to on the hearing.” The practice in New York requires the recital in the order of all the papers read on the motion. N. Y. Gen. Rule


13. Amending file-mark.]— The court have power to allow amendment of an erroneous file-mark made by its own clerk; but should not amend, but may on competent evidence disregard an erroneous file-mark made by the clerk of another court.47

14. File-marking nunc pro tunc.]— Where the filing officer has omitted to indorse the proper file-mark upon a document that has been filed in his office, it may be done subsequently by the sanction of the court, and will have the same effect as if done at the proper

time. 48

15. Certified copy as proof of filing.] – To secure evidence of filing in all matters in which an important right, that may be questioned in the future, depends on due filing, it is convenient to take a certified copy from the filing office, including in the copy the indorsement of file-mark; for this will guard against danger of loss of evidence by removal of the paper from the files. If thereafter the paper be not found on the files its loss or destruction is presumed,49 and it may usually be proved by the copy as secondary evidence, even where there is no statute making the certified copy original evidence.

16. Supplying loss from files.]—Where paper is lost or withheld from its records the court have power to allow a copy to be filed. 50 In such case it is best to annex the copy to the order granting leave to file, and to refer to the copy in the order, as annexed, and file both together. 51

46 Kennedy v. State, 9 Tex. App. 399. See Hamilton v. Beardslee, 51 III. 478.

47 Id.

48 Holman v. Chevaillier, 14 Tex. 337; Leslie v. State, 83 Ind. 180; Hawthorn v. City of East Portland, 12 Oreg. 210, 6 Pac. Rep. 685; Hamilton r. Beardslee, 51 Ill. 478; S. P., Clapp v. Graves, 2 Hilt. 317. See also Hubbard r. State, 72 Ala. 164 (holding that the indorsement by the clerk of the filing of an indictment may be made at any time while the cause in in fieri).

49 Mandeville v. Reynolds, 68 N. Y. 528; Leland v. Cameron, 31 N. Y. 115.

50 Sturtevant v. Robi on, 18 Pick. (Mass.) 175, 179 (copy writ of scire facias allowed to be filed to supply loss); N. Y. Code Civ. Pro., § 726; Lamu 1. Hinman, 46 Mich. 112.

Such copy to be stricken from the files if original be found and inserted. Sweet v. Brown, 61 Iowa, 669.

51 In Rogers v. State, 11 Tex. App. 608, it was held that the authenticity of a copy or substituted indictment filed to supply the place of the original muld not be presumed from the fact of its being filed, and the records of the court containing an entry of leave to file a substitute; but the record must identify it and show the intended substitution actually made.

17. Withdrawing from the files.]— Leave to withdraw a paper from the files should rarely be granted against objection, except for temporary use as evidence, or for purposes of amendment; and in the latter case, if the object of amendment be to modify an allegation of fact, the original allegation should usually be allowed to remain in such condition that it may be used if desired, as evidence in the nature of an admission, subject of course to explanation.52

The court exercises its discretion too in furtherance of justice as to whether it will permit a document to be withdrawn from the files for use as evidence in another action.53

Where all parties consent the court should, on cause shown, especially where domestic welfare and peace are concerned, allow the papers in a discontinued or compromised suit to be withdrawn.54

18. Striking off the files.]— The court may freely strike out scandalous and impertinent matter from papers filed or presented for filing, 55 or may strike such papers from the files; 50 and in such

52 See article on Amendments, page 20 of this volume. It rests in the discretion of the court whether it will permit the answer of one of the defendants to be withdrawn, against the objection of other parties who have an interest in retaining it upon the record. Cushman v. Leland, 93 N. Y. 652; Washburn V. Gillett, 4 Monthly L. Bul. (N. Y.) 22.

53 Rogerson 1. Neal, 16 Pick. (Mass.) 370; French v. Neal, 24 id. 55 (refusing such leave for a second action on the same document after failure in the first action).

54 For precedents see Walton v. Broadbent, 3 Mare, 334 (bill withdrawn); Barritt 1. Tidswell, 7 Wkly. Rep. 85 (affidavit); Jewin v. Taylor, 6 Beav. 120 (bill); Clifton v. Bentall, 9 id. 105 (practice disapproved). The earliest case seems to be Tremaine v. Tremaine (1683), 1 Vern. 189 (where, in cause between father and son, bill and answer were taken off by consent).

A person may be punished criminally for taking a paper from the cour files without leave. People v. Peck, 61 Hun, 500, 22 N. Y. Supp. 576; afro 138 N. Y. 386.

55 Allegations contained in an affidavit which are irrelevant, impertinen: and scandalous, held properly stricken out of the affidavit, and the cost properly imposed upon the attorney who inserted them. McVey V. Cantrel 8 Hun" (N. Y.), 522; S. P., Exp. Simpson, 15 Ves. 476 (striking affidav from files). Portions of a pleading may be so stricken out, although no filed. See Hilton v. Carr, 40 App. Div. 490, 58 N. Y. Supp. 134.

Scandalous matter included in the presentment of a grand jury may expunged. See Matter of Jones, 181 N. Y. 389.

56 Goddard v. Parr, 24 L. J. Ch. 783; S. C., 3 Wkly. Rep. 633 (where witness called to prove a contract was asked whether he ever told fortun with a view to discredit him. He answered no, and two affidavits were fil of persons who alleged that he had told their fortunes in writing. Held, th


cases destruction is usually preferable to leaving the paper in the hands of those who were guilty of presenting it." Gross and injurious prolixity is also a ground on which the court may strike out an affidavit or charge the attorney with costs.

A paper which is so entirely irregular or insufficient that it has Do business on the files at all may also be struck off;

59 but this remedy is not to be encouraged if it be a pleading to be met in ordinary course.


a motion to strike the affidavits off the file should be granted, and the party filing them must pay the costs. The case contains an excellent discussion of the absurdity of allowing evidence to contradict a witness on an immaterial point in the case).

In Kernick v. Kernick, 12 Wkly. Rep. 335, a wife sued her husband for a settlement, and the defense filed an affidavit of the husband that a third person had confessed to him that he had committed adultery with the wife. Held (on motion), that the affidavit should be struck off as hearsay and scandalous, and that the usual rule as to costs should be applied (“ attorney paying costs”). The court say they could have struck the affidavit off the files even if it had contained only innocent matter, since it was purely hearsay — and a fortiori they would strike it off the files since it contained scan. dalous matter.

In Woods v. Morrell, 1 Johns. Ch. 103, the chancellor says: “ Facts not material to the decision are impertinent, and if reproachful, they are scandalous; and perhaps the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in issue and would be matter proper to be given in evidence between the parties.” The power should only be exercised in exceptional cases, to cure mistakes or destroy scandalous accusations. Schecker 1. Woolsey, 2 App. Div. 52, 37 N. Y. Supp. 392. “Of course affidavits and documents not properly part of the records of the court and filed by mistake would properly be directed to be removed. So, also, the court should not suffer its records to be used to publish libels, and scandalous accusations wholly irrelevant to the cause should be suppressed.”

57" It was stated in the course of the argument that when a document is ordered to be taken off the file the practice is not to return it to the party who placed it there, but to destroy it by burning.” Reporter's foot note to the case of Hill v. Hart-Davis, L. R. 26 Ch. Div. 470 (where, on motion to strike an affidavit from the files because of prolixity, it was held to be the better way to allow the affidavit in question to remain on file to save the trouble and delay of another being made, but directing the payment of costs of an affidavit of proper length, and declaring the power of the court, in a proper case, to strike off an affidavit from the file of the court independently of any rule authorizing such action).

58 Hill v. Hart-Davis (Eng. Ct. of App. 1884), L. R. 26 Ch. Div. 470.

59 1 Dan. Ch. Pr. 731, 732, citing Griffiths v. Wood, 11 Ves. 62, indicating that the notice of motion should describe the paper as

a certain paper writing purporting to be an answer, etc.

60A motion may lie upon such a pleading for judgment upon it as frivolous. N. Y. Code Civ. Pro. g 537.

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