Poetz v. Mix

• Decision Date: 18 June 1951
• Docket Number: No. A--124,A--124
• Citation: 7 N.J. 436,81 A.2d 741
• Parties: POETZ v. MIX et al.
• Court: New Jersey Supreme Court

Page 436

7 N.J. 436

81 A.2d 741

POETZ v. MIX et al.

No. A--124.

Supreme Court of New Jersey.

Argued April 30, 1951.

Decided June 18, 1951.

Perry E. Belfatto, Newark, argued the cause for appellant.

Robert Shaw, Newark, argued the cause for respondent Sarah Mix (Duggan, Shaw & Hughes, Newark, attorneys).

Donald R. Creighton, Hoboken, argued the cause for the respondent Delaware, L. & W.R. Co.; Allan W. Keusch, Hoboken, on the brief.

The opinion of the court was delivered by

ACKERSON, J.

This is an action in tort to recover damages for personal injuries alleged to have been caused by defendants' negligence. The main question presented for decision is whether such action was commenced within the two year limitation period prescribed by the Statute of Limitations (R.S. 2:24--2, N.J.S.A.).

The proofs disclose, without contradiction, that the accident occurred on July 16, 1947. Plaintiff at the time of the occurrence was engaged in his occupation as an employee of the Berger-Poetz Fuel Company in Paterson. The complaint in this action was stamped by the Clerk of the Superior Court in the following manner: 'Received July 18, 1949' (being a Monday); 'Filed July 16, 1949' (being a Saturday), and filing fee 'Paid July 20, 1949'. The 'received' stamp was according to the usual procedure, the first stamp placed upon a complaint when received in the Clerk's office and the file date was the next to be stamped thereon. The proofs also establish that it was the custom of the Clerk's office at the time in question to hold mail received on Saturdays unopened until Monday when it was opened and stamped as received on the Monday. The complaint herein also bears the penciled notation 'N.C.', meaning that no check accompanied its receipt. The uncontradicted proofs further show that there was not sufficient money in the account which plaintiff's attorney kept with the Clerk to cover the filing fee and that such funds were not made available until July 20, 1949, when the complaint was stamped 'Paid July 20, 1949'.

The defendants by their respective answers, as amended by the pretrial order, beside denying the charge of negligence, set forth the following separate defenses to plaintiff's claim, Inter alia: (1) the statute of limitations, and (2) that the named plaintiff was not the real party in interest. Both of these separate defenses were incorporated into motions 'to dismiss' (actually motions for judgment on the pleadings, Rule 3:12--3). Upon the return day of the motions, depositions were submitted and testimony was taken in open court with respect to the aforementioned grounds. The trial judge therefore treated such motions as the equivalent of motions for summary judgment pursuant to Rules 3:12--3 and 3:56. At the conclusion of the hearing, the trial court granted defendants' motion on the first of the above grounds, i.e., that the suit was barred by the statute of limitations. Plaintiff appealed to the Appellate Division from the judgment entered thereon and we certified the cause on our own motion.

The applicable statute of limitations, R.S. 2:24--2, N.J.S.A., provides: 'All actions for injuries to the person caused by the wrongful act, neglect or default of any person or persons, * * * shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter.'

Under the rules of civil procedure an action is commenced by the filing of the complaint. Rule 3:3--1. The essential issue is as to the time the plaintiff was entitled to have the complaint treated as 'filed' within the contemplation of that rule.

Plaintiff argues that the trial court erred in dismissing the action as barred by the statute of limitations. Reliance is placed upon the aforementioned practice prevailing in the Clerk's office of holding mail received on Saturday unopened until the following Monday when it was stamped as received, and, according to plaintiff's contention, is filed as of the preceding Saturday. The record here shows that July 16, 1949 was on Saturday and that July 18, 1949 fell on a Monday. Since the complaint herein bears the stamps 'Received July 18, 1949' and 'Filed July 16, 1949', the plaintiff would have the court infer that the complaint was actually received by the Clerk in the ordinary course of mail on Saturday, July 16, 1949, and filed Nunc pro tunc as of that date. However, for other reasons presently to appear, it is unnecessary to explore the theory thus advanced.

Defendants maintain that there are several essential acts which a party must perform before he is entitled to have a paper marked filed, i.e., (1) the presentation of the paper at the Clerk's office, (2) payment of the filing fee. Counsel for the defendant railroad company further argues that the 'processing' of a complaint after receipt by the Clerk of the requisite filing fee is synonymous with the term 'filed' and that such processing is a condition precedent to an effective filing.

In arguing that the payment of a fee is a prerequisite to an effective filing, defendants direct the attention of the court to the provisions of R.S. 22:1A--5, N.J.S.A., and Rule 3:5--7. The contention made is that the statute makes it mandatory that a fee be paid upon the filing of a paper and that the same requirement is inferable from the aforesaid rule which punishes the failure to do so.

R.S. 22:1A--5, N.J.S.A., provides: 'Upon the filing or entering of the first paper or proceeding in any action or proceeding in the Law Division of the Superior Court, the plaintiff shall pay ten dollars ($10.00) for the first paper filed by him, to the clerk, * * *.'

Rule 3:5--7 provides: 'No attorney shall present, or cause to be presented, any paper for * * * filing, unless he shall have paid to the clerk the fees due in respect thereof. Any breach of this rule, even though inadvertent, shall constitute a contempt in facie curiae.'

These provisions, however, are merely directory so far as effective filing is concerned. The statute (R.S. 22:1A--5, N.J.S.A.) fixes the time when the fee is payable, and the rule (Rule 3:5--7) places the burden of attending to the payment upon the attorney. It is significant that the payment of the requisite fee is not made an integral part of filing, but rather, is treated as a separate act. Attorneys are required to pay fees in advance; failure to do so not only places the attorney in contempt of court, but also renders him personally liable therefor, except in the instances specified in the statute, R.S. 22:1A--16, N.J.S.A. Clerks are likewise personally responsible for payment of filing fees and are directed to collect them in advance 'for their own protection', R.S. 22:4--16, N.J.S.A. By R.S. 22:4--14, N.J.S.A. the clerk is accountable for all monies which come into his hands.

We think it is reasonably inferable from a fair reading of the above mentioned provisions that they are not in ended to deprive a party of the benefit of an actual filing completed before the payment of the filing fee. In contemplation of law, a paper or pleading is considered as filed when delivered to the proper custodian and received by him to be kept on file. The endorsement of the clerk does not, according to the greater weight of authority, constitute a part of the filing but is merely evidence of that fact. Oats v. State, 153 Ind. 436, 55 N.E. 226 (Ind.Sup.Ct.1899); Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877, 66 A.L.R. 102 (W.Va.Sup.Ct. of App., 1929); 41 Am.Jur. (Pleading) § 316, pp. 509--510; 45 Id. (Records and Recording Laws) § 6, p. 422; and cases cited in 16 Words and Phrases, File, pp. 537, 549 et seq. The rule has been aptly expressed in this jurisdiction in the case of Mahnken v. Meltz, 97 N.J.L. 159, at page 161, 116 A. 794, 795 (E. & A. 1921) in the following language: 'Originally 'filing' consisted of putting writs and other exhibits in courts and offices upon a string or wire for safe-keeping and ready reference. In modern usage it consists in placing in the custody of the proper official the paper to be filed, and while his duty undoubtedly requires his making a proper endorsement upon the paper so deposited, it is undoubtedly filed in theory and contemplation of law, when lodged with the proper officer.'

This is borne out by Rule 3:5--6 entitled 'Filing with the Court Defined' which provides that the filing of pleadings and other papers with the court as required by the rules of practice 'shall be made by filing the original and either a duplicate original or a clear carbon copy with the clerk of the Superior Court * * *.' No mention whatsoever is made of a filing fee as a condition precedent to filing.

The clerk of the court may, however, justifiably refuse to file the paper until the proper fee has been paid. R.S. 22:4--16, N.J.S.A. In the case of Korfin v. Continental Casualty Co., 5 N.J. 154, 157, 74 A.2d 312 (1950), recently decided by this court and cited by the parties herein, the clerk of the Superior Court refused to file a notice of appeal until the appellant had paid the full amount of the requisite fee. We held there that under such circumstances the paper was filed when the fee was fully paid since the clerk had actually exercised his prerogative under the statute. The case Sub judice is clearly distinguishable for here there was no refusal to receive and file the complaint until the fee was fully paid. On the contrary it was stamped as received and filed several days before the attorney's account was made good. By the language of the statute (R.S. 22:4--16, N.J.S.A.), the clerk 'may exact in advance' the fees and costs of filing 'For their own protection'. It is therefore a requirement which the clerk may be his own behavior waive and thereby accept personal liability for the payment.

The case of Clemens Electrical Manuf'g. Co. v. Walton, 168 Mass. 304, 47 N.E. 102 (Mass.Sup.Jud.Ct., 1897) we believe is quite analogous. There, a petition to establish the truth of exceptions was...