Hook v. Fenner

• Decision Date: 06 March 1893
• Parties: HOOK et al. v. FENNER.
• Court: Colorado Supreme Court

32 P. 614

18 Colo. 283

HOOK et al. v. FENNER.

Supreme Court of Colorado

March 6, 1893

Error to Eagle county court.

Replevin by D. W. Fenner against W. R. Hook and others, brought before J. S. McMun, justice of the peace within and for the county of Eagle. Writ of replevin issued upon the 1st day of November, 1889. A trial before the justice resulted in a verdict and judgment for the plaintiff. Appeal taken to the county court, where the case was again tried with the same result, and defendants bring error. Affirmed.

Norris & Howard and C. K. Phillips, for plaintiffs in error.

Montgomery & Frost and H. M. Jacoway, for defendant in error.

HAYT C.J.

In the county court a motion was made for the first time to dismiss the action for the want of jurisdiction, because, as it is alleged, the writ was issued before the filing of any undertaking with the justice. This motion was overruled, and this ruling of the court constitutes the principal ground of error relied upon in this court. There is an undertaking in the statutory form in the record, but there is a dispute between the parties as to whether it was in fact filed before or after the issuance of the writ by the justice. The plaintiff in error claims that it was not filed until after the writ had been issued and executed. In support of this contention they rely upon the filing indorsement of the justice upon the instrument. This shows that the undertaking was filed upon the 8th day of November,--seven days after the date of the writ. The defendant in error claims that this date is manifestly incorrect. To show this he relies upon the fact that the bond itself bears date the 1st of November, 1889, and also calls attention to the recitals in the writ of replevin, under the hand and seal of the justice, to the effect that, the plaintiff having previously given good and sufficient security to prosecute his action, and to make return of the goods and chattels described therein if return should be awarded, etc. In the consideration of the question thus raised, it becomes important to determine at the outset what constitutes the filing of a paper. Is it the clerical act of indorsing it as filed, or is it receipt of the paper by the proper custodian and its lodgment in his office? The duty of a party required to file any paper would seem to be discharged when he has placed the same in the hands of the proper custodian, at a proper time, and in a proper place. If a paper in the case is placed as a permanent record in the office of the justice of the peace, this ought to be sufficient, no matter if the justice fails to perform the mere clerical act of indorsing it as filed. If the paper was actually placed in the hands of the justice for filing before the writ was issued, it is clear that it was his duty to mark the same as filed. Failing to discharge this duty, can it operate to the prejudice of either party to the suit? We are of the opinion that it cannot. The undertaking as presented by the plaintiff below is in strict accordance with the statute. No question is made upon the responsibility of the sureties. It appears that it was in every way...