Meridian National Bank v. Hoyt & Bros. Co.

• Decision Date: 30 November 1896
• Parties: MERIDIAN NATIONAL BANK ET AL. v. HOYT & BROS. CO. ET AL
• Court: Mississippi Supreme Court

21 So. 12

74 Miss. 221

MERIDIAN NATIONAL BANK ET AL. v. HOYT & BROS. CO. ET AL

Supreme Court of Mississippi

November 30, 1896

October 1896

FROM the chancery court of Lauderdale county HON. N. C. HILL Chancellor.

The opinion states the case.

Affirmed.

G. Q Hall, for the appellants.

Was the bill, in legal contemplation, filed on May 5, 1892, or, is it true, as contended, that it was not filed until the issuance of process on May 9 § The language of the statute is that the creditor "shall have a lien upon the property described, u from the filing of his bill, except as against bona fide purchasers before the service of the process upon the defendant in such bill." Code 1892, § 503. Hoyt & Bros. Co. et al. do not belong to the excepted class of "bona fide purchasers."

In Bacon v. Gardner, 23 Miss. 60, and in Christian v. O' Neal, 46 Miss. 669, the difference is pointed out between the rule which obtains in courts of equity as to what constitutes the bringing of a suit, and in courts of law. In the former, the date of the filing of the bill marks the date of the institution of the suit; while in the latter, the date of issuance of process is the date of bringing the suit. The officer's certificate of the filing is the best evidence of such filing. Peterson v. Taylor, 15 Ga., 483; Bettersen v. Budd, 21 Ark., 580; Engelmore v. State, 2 Ind., 91. What would be a sufficient filing of a court paper might not be sufficient filing under registry laws, and for obvious reasons. Our later registry statutes employ language that indicates what is sufficient filing thereunder, to wit, "lodge" with the clerk and "deliver" to the clerk. Sections 2457, 2459, code of 1892. The grantee fully acquits himself of all duty imposed by law when he lodges the deed with the clerk for record. Mangold v. Barlow, 61 Miss. 593. The use of such terms as "lodge" with and "deliver" to the clerk in the recent statutes seems to result from the decisions of this court declaring what is sufficient to be done in order to amount to a legal filing under registry laws. As, for example, under the agricultural lien law of 1867, where the contract was not required to be recorded, but only to be enrolled, that is to say, a brief summary to be made "to guide the inquirer to the knowledge of the names of the creditor and debtor, the amount of the debt, when due, and when the contract was filed, " the court held that the lodgment of a paper, or a copy thereof, in the clerk's office was necessary. Cooper v. Frierson, 48 Miss. 300.

Under the present statutes providing for filing and recording of a certain class of contracts, the language used is that they shall be lodged with and delivered to the clerk, there to remain until duly recorded. After a record is made of it, it may, of course, be withdrawn, which withdrawal does not defeat the former filing. But under those acts, which did not require a recording of the instrument, the filing was effectual only so long as the paper was left in the custody of the clerk for the inspection of the public. Such papers are the property of individuals, and may be withdrawn at pleasure, hence the necessity for the requirement that the original or a copy should be left in the clerk's office, in the one instance, or until recorded, in the other instance, for the information of all sought to be bound by anything contained therein. But court papers, when filed, become the property of the court, and not of the litigants. Every such paper is required to be marked filed, and the date of filing to be indorsed and entry thereof made in the general docket, and the style and number of the cause entered, and the papers filed in the cause are required to be kept in the same package or file, and the clerk is prohibited from suffering any paper so filed to be withdrawn save by leave of the court, and then only by retaining a copy. Code 1892, §§ 463, 634.

Whether the term withdrawal has reference to withdrawing from the files, or taking the file of papers from the clerk's office by counsel engaged in the cause for examination or other purpose, is immaterial. When the paper is once put into the possession of the clerk, and indorsed filed, and entered on his docket, as the clerk did in this case, the paper becomes the property of the court--a record of the court--which neither clerk nor court can permit to be withdrawn without retaining a copy. As to what is a sufficient filing, see, also, Swan v. Rary, 2 Blackf., 291; Beebe v. Morrell, 76 Mich. 190; Johnson v. Crawfordsville, etc., Railroad Co., 11 Ind., 280.

Witherspoon & Witherspoon, for the appellees.

Our position in this case is, that appellants' bill was marked filed but never filed. There was no lodging of the paper with the clerk, nor was it such a filing of it as gave the complainant any lien upon the property. The reason of the law requiring the bill to be filed before any lien is obtained thereby, is that the lien may be public and not secret, and therefore a paper creating it should be in a public place selected by the law as the place where any person interested might go and examine it for himself. The meaning of the word "file, " as applied to legal documents, is clearly defined by § 463, code 1892, and § 1809, code 1880, where it is provided that all papers and pleadings filed in a cause shall be kept in the same file and all the files kept in numerical order, showing that, in the sense of a statute, the filing of a paper means to put it with the other papers in the case and keep them together in the office of the clerk. But in order that there might be no mistake about the meaning of this requirement of the law, the same section further provides that the clerk shall not suffer any paper, so filed, to be withdrawn but by leave of the chancellor, and then only on retaining a copy, to be made at the cost of the party obtaining the leave. This is the law with reference to filing a bill, and we do not understand how the appellant could violate that law in every letter, could fail to have its pretended bill kept in the same file with the other papers, should fail to keep the file in numerical order, should fail to leave or lodge the paper with the clerk at all, but should keep the paper in its own possession, without obtaining the leave of the chancellor and without giving the clerk a copy of the bill, and, after all this violation of the law with reference to the filing of its bill, claim that it had filed it, and, by filing it, had obtained a superior lien. In order to obtain the creditor's lien, it was necessary that the appellant should file its bill as the law required, and, having failed to do this, its bill was never actually filed until the tenth of March, when it was returned to and lodged with the clerk, which was after appellees' lien had attached.

J. S. Ham, on the same side.

The evidence does not show such a filing of the bill of the Meridian National Bank as was necessary to create a lien upon the property of the Acme Lumber Company. No paper can be considered as filed until it has been delivered to the proper officer, and by him received, to be placed and kept on file in his office. See Beebe v. Morrell, 15 Am. St. Rep., 288, and the extended and interesting note to the case, p. 294 et seq.; County Commissioners v. State, 12 Am. St. Rep., 183, and note to pp. 189, 190.

Argued orally by G. Q. Hall, for appellants.

OPINION

WHITFIELD, J.

The question which lies at the threshold in the decision of this case is whether the bill of appellant was filed, within the contemplation of law, on May 5, 1892. The facts are these: On May 5, 1892, appellant's counsel took the bill and the exhibits in one cover to the chancery clerk, and had him indorse on the bill the word "filed." etc., and the clerk made a corresponding entry in the general docket, and prepared a regular court wrapper, and put it around the papers. But counsel immediately took the bill and exhibits back to his office, telling the clerk that he did not wish process issued then, but not giving him any reason for not issuing process. The clerk charged the counsel with the papers in his attorney's docket. The bill was kept by counsel in his office until the ninth of May, when he returned the bill, and process was issued and served on the tenth. In the meantime, on May 7, 1892, counsel for appellees took their bill to the clerk of the chancery court, and it was filed on that day, and process issued and served that day. Said counsel had, on the fifth of May, gone to the clerk's office, to see what bill, if any, had been filed, and was told a bill had been filed by counsel for appellant, and was shown the entry on the general docket, and informed that the papers were at the office of appellant's counsel. These are all the facts bearing on this question.

The code of 1892, § 463, provides that the clerk "shall not suffer any paper so filed to be withdrawn but by leave of the chancellor, and then only by retaining a copy, to be made at the costs of the party obtaining the leave. All the papers and pleadings filed in a cause shall be kept in the same file, and...