In re Von Borcke

• Decision Date: 24 April 1899
• Citation: 94 F. 352
• Parties: In re VON BORCKE.
• Court: U.S. District Court — District of New Jersey

94 F. 352

In re VON BORCKE.

United States District Court, D. New Jersey.

April 24, 1899

Joseph Anderson, for petitioning creditors.

William M. Dougherty, for bankrupt.

KIRKPATRICK, District Judge.

It appears from the testimony which has been taken in this matter, and from the file mark on the papers, that the petition for the adjudication of Von Borcke as a bankrupt was delivered to the clerk of this court, in person, on the third day of March last, at 8 o'clock p.m. It is beyond dispute that the clerk was the proper officer delivered to, and received by, him for the purpose of being kept on file. 'A paper is said to be on file when it is delivered to the proper officer to be kept on file.' 7 Am. & Eng.Enc.Law,p. 960. The test of filing seems to be whether the officer in whose custody the paper is placed is the one entitled to retain the same. It was upon the ground that the person to whom the paper was delivered was not such officer authorized by law to retain its custody, but merely the messenger of such officer, that the decision of Garlick v. Sangster, 9 Bing. 46, was rested. The paper had not reached the hands of the court's custodian.

The case of People's Sav. Bank & Trust Co. v. Batchelder Egg Case Co., 4 U.S.App. 609, 2 C.C.A. 126, and 51 F. 130, is very much in point. There the law required certain papers to be 'filed' before a writ of attachment could be issued. These papers were delivered to the clerk outside of his office, after office hours, and by him marked 'Filed.' The attachment issued immediately, and before the papers so marked had actually reached the clerk's office. The United States circuit court of appeals for the Eighth circuit held that the levy made by virtue of the writ issued under these circumstances was valid, saying that a construction of the law such as is contended for in this matter 'would be too narrow and technical for the practical and business methods that should obtain in the administration of the law. ' I am of the opinion that the petition in this cause was filed on March 3, 1899, as appears by the indorsement of the clerk thereon, verified by the testimony adduced on the hearing. The rule heretofore granted in the cause will be discharged.