Ex parte State ex rel. Breitling

• Decision Date: 05 June 1930
• Docket Number: 2 Div. 965.
• Citation: 128 So. 788,221 Ala. 398
• Parties: EX PARTE STATE EX REL. BREITLING.
• Court: Alabama Supreme Court

128 So. 788

221 Ala. 398

EX PARTE STATE EX REL. BREITLING.

2 Div. 965.

Supreme Court of Alabama

June 5, 1930

Rehearing Denied June 19, 1930.

Petition of the State, on the relation of G. Tom Breitling, for mandamus to Hon. Benj. F. Elmore, as Judge of the Circuit Court of Marengo County.

Writ denied.

The petition shows that a summons and complaint in a cause in which G. Tom Breitling was styled plaintiff, and the Southern Railway Company defendant, was deposited in the mail in Selma, Ala., on March 20, 1929, directed to the clerk of the circuit court of Marengo county, at Linden, Ala.; that same arrived at Linden on the afternoon of the same day, and was placed in the post office box provided by said clerk; that the clerk's office was closed from March 18th to March 26th, and neither the clerk nor any one authorized to act for him was in Linden during said period; that the clerk returned to his office on March 27th, and indorsed said summons and complaint as filed on said date; that petitioner moved the respondent trial judge to direct the clerk to change the date of filing so as to make the same speak the truth from March 27 to March 21, 1929; and that said motion was by the respondent overruled.

Hobbs Craig & Brown, of Selma, for petitioner.

Benj. F. Elmore, of Demopolis, for respondent.

GARDNER J.

Under the provisions of section 8967, Code 1923, appellant's suit commenced upon the filing of his complaint in the office of the clerk, and the result of this appeal turns upon the proper construction of this statute.

Confessedly the complaint was not filed in the clerk's office on the date insisted upon in this proceeding, but was placed in the mail and remained at the post office, doubtless in the post office box of the clerk. As pointed out by the authorities the word "file" is derived from the Latin word "filum," a thread, and its application is drawn from the ancient practice of placing papers on a thread or wire for ready reference. In Words and Phrases, Second Series, vol. 2, page 531, is the following definition "There can be no 'filing' of a paper in a legal sense except by its delivery to an official whose duty it is to file papers and who is required to keep and maintain an office or other public place for their deposit, and the paper must either be delivered personally to such officer with the intent that the same shall be filed by him, or delivered at the place where the same...