Mcintosh v. Palmer
| Decision Date | 04 June 1935 |
| Docket Number | Case Number: 25883 |
| Citation | 48 P.2d 815,1935 OK 637,173 Okla. 367 |
| Parties | McINTOSH v. PALMER |
| Court | Oklahoma Supreme Court |
¶0 1. COURTS - Appeal in Probate Matter From County to District Court - Filing of Appeal Bond With Court Clerk Held Sufficient.
Filing of appeal bond appealing from the county court to the district court in a probate matter with the court clerk on the last day allowed by law for filing the bond is sufficient compliance with the statute governing such appeals.
2. SAME - Acceptance of Appeal Bond by Court Clerk After Office Hours Held Substantial Compliance With Statute.
Where an appeal bond duly approved by the county judge, appealing from a decision of the county court in a probate matter, is delivered to the court clerk after the closing of the court clerk's office and the court clerk in receiving said bond offers to carry it to his office and file it, the delivery of the bond to the court clerk and his acceptance thereof is a substantial compliance with the statute governing the filing of appeal bonds in such cases.
3. SAME.
Where a court clerk receives an appeal bond from the county court to the district court and offers to file the same, he receives the same as court clerk, and the actual filing of the bond is immaterial.
Appeal from District Court, Okfuskee County; John L. Norman, Judge.
Petition in county court by Cora McIntosh for determination of heirs of Jacob Pierce, deceased. Motion by S.T. Palmer, administrator, to strike petition sustained, and appeal of petitioner to district court dismissed, and petitioner brings error. Reversed.
T.H. Wren, Tom Waldrep, and K. Shelton Skinner, Jr., for plaintiff in error.
Leon C. Phillips, William L. Seawell, and Thos. H. Owen, for defendant in error.
¶1 Plaintiff in error filed her petition in the county court in Okfuskee county praying the court to determine the heirs of Jacob Pierce, deceased, alleging, among other things, that she was interested beneficially in the estate of the said Jacob Pierce, deceased, she being the surviving wife and widow of the said Jacob Pierce, and alleging that she was the sale surviving heir of the said Jacob Pierce.
¶2 Thereafter the administrator of the estate filed a motion to strike the petition from the files, and thereafter the administrator filed an amended motion to strike the petition from the files. The court, on the 19th day of February, 1934, sustained a motion to strike the petition from the files. Due notice of intent to appeal to the district court from the order dismissing the petition was given and duly served on the county judge as required by law. The county judge fixed the appeal bond in the sum of $10,000, and the bond was executed; on the 1st day of March, 1934, it was approved by the county judge.
¶3 The record discloses that the 1st day of March, 1934, was the last day on which the appeal bond from the county court might be filed in the district court, and that about 6 o'clock in the afternoon of March 1, 1934, T.H. Wren, attorney for the plaintiff in error, presented this bond, after it had been approved by the county judge, to the court clerk of Okfuskee county at the residence of the court clerk. That the court clerk offered to go to his office at that time and file the bond, that he did not actually carry the bond to the courthouse on March 1, 1934, but kept it in his possession and actually deposited the bond in his office on the following day, March 2, 1934.
¶4 The defendant in error afterward filed a motion in the district court to dismiss the appeal for the reason that the bond was not executed in a manner prescribed by law and was not filed within the time provided by law, and on the hearing of this motion the district court sustained it and dismissed the appeal. Exception was had to the ruling of the trial court, and this case is now here on appeal from the ruling of the trial court dismissing the appeal of the plaintiff in error. Hereafter the plaintiff in error will be referred to as the plaintiff, and the defendant in error as the defendant.
¶5 There is but one question presented here: Was the delivery of the approved bond to the court clerk at his home a substantial compliance with section 1400 and section 1401, Okla. Stats. 1931? Exhaustive briefs have been filed by both parties to this suit, quoting many authorities, but we do not find any Oklahoma case exactly in point.
¶6 In this case the appeal bond was delivered to the court clerk, who offered to go to the courthouse and file it. The bond had already on that day been approved by the county judge. The contention is made that the bond should have been filed in the office of the court clerk, and that because it was delivered to the court clerk at a place other than his office the statute was not sufficiently complied with and the case was not properly appealed and lodged in the district court.
¶7 Bouvier's Law Dictionary, under the word "filed" or "filing," uses this language:
"A paper is * * * filed when it is delivered to the proper officer and by him received to be kept on file."
¶8 And Words and Phrases (2d Ser.) p. 531, says:
"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 should be filed by him."
¶9 In the case of Bade v. Hibbard, 93 P. 364, the Supreme Court of Oregon held:
"A paper is filed for record in contemplation of law when it is delivered to the proper officer with the intention that it shall become part of the...
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Horn v. Sturm
...that it be received as a filing without regard to the place of receipt constitutes substantial compliance with the law. McIntosh v. Palmer, 172 Okl. 367, 48 P.2d 815; Bauer et al. v. Samples et al., supra. Under this rule no complaint could be made of the instant filing had the motion been ......
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Smith v. Fidelity & Casualty Company of New York
...to the effect that "a paper is filed when it is delivered to the proper officer and by him received to be kept on file. McIntosh v. Palmer, 173 Okl. 367, 48 P.2d 815." When the question this appeal poses, whether the evidence offered to prove filing was sufficient, is considered, in the lig......
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Bauer v. Samples
... ... [72 P.2d 814.] ... time and attended by a deputy clerk and the clerk's ... office open." ... We have ... held in McIntosh v. Palmer, 173 Okl. 367, 48 P.2d ... 815, that the delivery of a pleading to the official ... designated by law to receive it, with the intention ... ...
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