Forsyth v. Hale

• Decision Date: 05 April 1983
• Docket Number: No. 65394,65394
• Citation: 304 S.E.2d 81,166 Ga.App. 340
• Parties: FORSYTH v. HALE et al.
• Court: Georgia Court of Appeals

Page 81

304 S.E.2d 81

166 Ga.App. 340

FORSYTH v. HALE et al.

No. 65394.

Court of Appeals of Georgia.

April 5, 1983.

Rehearing Denied April 20, 1983.

Certiorari Denied June 7, 1983.

William E. Cannon, Jr., Eugene C. Black, Jr., Albany, for appellees.

CARLEY, Judge.

Appellant-plaintiff was injured in an automobile collision which occurred on June 6, 1980. On Friday, June 4, 1982, an agent in the employ of appellant's attorney in Atlanta was instructed to hand deliver appellant's complaint to the Clerk's Office of the Lee County Superior Court for filing. En route, the agent stopped and called the clerk's office concerning his mission. The deputy clerk, Ms. Nix, informed the agent that the clerk's office would be closed by the time he reached Leesburg, the county seat of Lee County. However, Ms. Nix instructed the agent to leave appellant's complaint in the sheriff's office and that, under those circumstances, she would accept the complaint as delivered for filing on June 4, 1982. After speaking with the agent, Ms. Nix went to the sheriff's office and advised that a complaint was being delivered and that it had been accepted by her as filed on June 4, 1982. Ms. Nix further requested that the sheriff's office hold the complaint for her until Monday, June 7, 1982.

Acting on his instructions from Ms. Nix, the agent proceeded to Leesburg and arrived there at approximately 6 p.m. The agent personally handed appellant's complaint to the deputy sheriff on duty in the Lee County Sheriff's Office. The deputy sheriff accepted the complaint on behalf of the clerk of the superior court. On June 7, 1982, Ms. Nix received appellant's complaint from the sheriff's office. According to what Ms. Nix admitted was an "error" on her part, she "inadvertently stamped it as being filed June 7, 1982 instead of June 4, 1982."

Appellees Hale and Thomas answered the complaint, raising the statute of limitations as one of their defenses. Appellees then moved to dismiss appellant's complaint as having been filed after the running of the applicable two-year statute of limitations. In response, appellant moved for an order directing the clerk of the court to correct the "clerical error" with regard to the complaint's filing date, changing it from June 7 to June 4, 1982.

The trial court conducted a hearing on the two motions. Afterwards, the trial court entered its order, containing the following relevant language: "In the absence of known specific statutory or case authority authorizing such procedure, this Court must conclude that the actual filing of the papers did not take place until June 7, 1982, when the Complaint was delivered by the Deputy Sheriff to the Deputy Clerk. It follows that the Clerk acted correctly in marking the papers to show that the actual filing was accomplished on June 7, 1982." Accordingly, the trial court denied appellant's motion to correct the "erroneous" filing date of the complaint and granted appellees' motion to dismiss based upon the statute of limitations. Appellant appeals from the order denying his motion and dismissing his complaint.

"A civil action is commenced by filing a complaint with the court." OCGA § 9-11-3 (Code Ann. § 81A-103). "The filing of pleadings and other papers with the court as required by this chapter shall be made by filing them with the clerk of the court ..." OCGA § 9-11-5(e) (Code Ann. 81A-105). "[T]he endorsement of the clerk as to the date of filing is the best evidence of the filing of such paper. But this is not necessary to the act of filing. The written memorandum of the clerk is but the evidence of delivery to him of the paper intended to be filed ... The actual date of filing is the date upon which the paper is handed to the clerk to be filed. [Cits.]... [T]here is a presumption of law that this entry of filing by the clerk is correct, and so long as it remains unchallenged it is presumed to be correct. [Cit.] The entry of filing is presumed to be correct, until the contrary is shown. [Cit.] Presumptions in favor of the correctness of such entries are rebuttable; but they are conclusive, unless properly traversed. [Cits.]" Brinson v. Ga. R. Bank & Trust Co., 45 Ga.App. 459, 461, 165 S.E. 321 (1932). Accordingly, the issue for resolution in the instant case is whether the presumption that appellant's complaint was filed on June 7, 1982, was rebutted and whether a correct filing date of June 4, 1982, was shown instead.

The trial court's observation that there is no "known specific statutory or case authority" authorizing the procedure followed in the instant case is correct. "It is essential to the filing of a paper in a clerk's office that the same be either lodged in his hands or with his knowledge placed in his office and under his charge." Jolley v. Rutherford, 112 Ga. 342(1), 37 S.E. 358 (1900). "There is only one way in which to file a paper in the superior court, and that is, by depositing it with the clerk, who is the legal custodian of the paper. [Cit.]" Hilt v. Young, 116 Ga. 708, 709, 43 S.E. 76 (1902). "[P]ersonal delivery to the clerk or to the judge or to the clerk at his home if the office is closed is the better practice. [Cits.]" State of Ga. v. Jones, 125 Ga.App. 361, 365, 187 S.E.2d 902 (1972).

In the instant case, it is clear that appellant's complaint was not placed into the actual hands of the clerk until June 7, 1982. It is also clear that the complaint was not left in the clerk's office on June 4, 1982. However, the "better practice" is not necessarily the only acceptable one. "[T]he decided cases indicate that the question of 'filing' might be decided on the basis of the context in which the question arises and the good faith of the filing party." State of Ga. v. Jones, supra at 365, 187 S.E.2d 902 (discussing federal cases). It is clear and undisputed that neither personal delivery to the clerk nor physical delivery to the clerk's office was accomplished on June 4, 1982, solely because the deputy clerk authorized the complaint to be "filed" on that date by leaving it with the deputy sheriff. When she was originally called concerning the filing of appellant's complaint and apprised the agent that the office would be closed when he arrived, the deputy clerk could have agreed to accept the complaint for filing that evening at her house. See generally Larsen v. Larsen, 224 Ga. 112(1), 160 S.E.2d 383 (1968). Or the deputy clerk could have agreed to remain at her office until the complaint was delivered or have agreed to return to the office at that time. See generally State of Ga. v. Jones, supra. Presumably one or more of these "better practices" would have been suggested or attempted by the agent had the deputy clerk not specifically authorized the filing procedure actually followed in the instant case. Accordingly, the issue becomes whether, instead of one of the "better" methods, compliance with the deputy clerk's suggested procedure of delivery of appellant's complaint to the deputy sheriff was a sufficient filing with the clerk as of June 4, 1982.

"[T]he duties of the clerk relating to the filing of complaints are ministerial in nature..." Orr v. Culpepper, 161 Ga.App. 801, 804, 288 S.E.2d 898 (1982). "It is the official duty of the clerk of a court to file all papers in a cause presented by the parties, and to mark them filed, with the date of filing. [Cits.]" Brinson v. Ga. R. Bank & Trust Co., supra, 45 Ga.App. at 460, 165 S.E. 321. " 'A paper is said to be filed, when it is delivered to the proper...