In Re Switzer's Estate, in Re

• Decision Date: 13 July 1934
• Citation: 156 So. 1,115 Fla. 780
• Parties: In re SWITZER'S ESTATE.* DARLING v. STREET.
• Court: Florida Supreme Court

156 So. 1

115 Fla. 780

In re SWITZER'S ESTATE.* DARLING v. STREET.

Florida Supreme Court

July 13, 1934

Motion to recall the mandate of the Supreme Court on appeal from an order dismissing an appeal from the county court for further consideration as on rehearing.

Motion denied.

For former opinion, see 150 So. 728. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

J. H Jones, of Orlando, for appellant.

Eldridge Hart, of Winter Park, for appellee.

OPINION

PER CURIAM.

Motion to recall the mandate in this case for purpose of further consideration as on rehearing was made at the June, 1933 term and by special order of this court such motion was continued over for further consideration and determination during this term; jurisdiction being expressly reserved for that purpose by special order of this court entered during the last term.

This court has now fully reconsidered every proposition presented as grounds for recall of the mandate and for rehearing. On October 13, 1933, we affirmed the decree below in lieu of granting a motion to dismiss the appeal as frivolous, 150 So. 728. The facts of this case, in so far as they are necessary to be stated in order to make understandable a ruling on appellant's petition, are as hereinafter set forth.

On March 27, 1931, the county judge entered a probate decree denying a petition of Charles G. Darling seeking to set aside probate of the will of one Charles R. Switzer, deceased. Under the statute six months and no more was allowed for taking an appeal from the county judge's decree of March 27, 1931. On the last day for entering an appeal, which happened to fall on Saturday, September 26, 1931, the appellant's attorney found the office of the county judge closed for the day, as was the generally known custom on Saturdays in Orlando. He thereupon called Miss M. I. Hart, a clerk who worked in the office of the county judge, on the telephone, and advised her that he wanted to file his entry of appeal in the Darling case. Counsel then went to Miss Hart's home and there left in her physical custody the paper which was required to be filed in order to effect appellant's entry of appeal. Miss Hart, the county judge's clerk, did not go back to the county judge's office in order to reopen it on Saturday afternoon for the deposit of the paper there on that date, but kept it in her personal possession at her home until Monday morning September 28, 1931. She then took it to the county judge's office and recorded it.

It therefore appears that although the entry of appeal was actually left in the custody of Miss Hart, the clerk who had authority to file and record it, that it was not actually placed officially amongst the papers in the office of the county judge at the courthouse until Monday September 28, 1931, which was two days too late.

In consequence of the above showing in the record the circuit judge dismissed the appeal from the county judge's court. The circuit court's order of dismissal is what is sought to be reversed on the present appeal to this court.

A paper is not filed unless it is not only deposited with the proper officer but is received by him into his official custody.

The authorities all hold that in order to constitute a 'filing' a paper must come into the officer's official as well as his personal custody. Neither the county judge nor his deputies have any authority to officially file as well as receive papers at their personal places of residence. When they undertake to do so, the filing is not complete although the paper is received, until the paper that has been left with the officer is thereafter actually taken by him to the place assigned for its official custody, which is at the courthouse.

Until a paper is revised at the proper place to be there put on file as part of the records of an office in which it is required by law to be not only filed but also kept, the filing is not complete, although the responsible officer may have personally received at some unofficial place the actual physical custody of the document proposed to be filed. County Com'rs of Franklin County v. State, 24 Fla. 55, 3 So. 471, 12 Am. St. Rep. 183; Waring v O'Doniel, 102 Fla. 354, 135 So. 850; Vickers v. Glenn, 102 Fla. 535, 136 So. 326; Cook v. J. I. Case Plow Works Co., 85 Fla. 421, 96 So. 292; Holman v. Chevaillier's Adm'r, 14 Tex. 337; Everman v. Hyman, 26 Ind.App. 165, 28 N.E. 1022, 84 Am. St. Rep. 284; Beebe v. Morrell, 76 Mich. 114, 42 N.W. 1119, 15 Am. St. Rep. 288; Day & Congleton Lbr. Co. v. Mack, 69 S.W. 712, 24 Ky. Law Rep. 640; Mann v. Carson, 120 Mich. 631, 79 N.W. 941; Manning v. State, 46 Tex. Cr. R. 326, 81 S.W. 957, 3 Ann. Cas. 867; Meek v. State ex rel.,...