Scranton Lumber Co. v. Knox

• Decision Date: 27 September 1926
• Docket Number: 25267
• Citation: 143 Miss. 643,109 So. 721
• Court: Mississippi Supreme Court
• Parties: SCRANTON LUMBER CO. v. KNOX, ATTY.-GEN. et al. [*]

109 So. 721

143 Miss. 643

SCRANTON LUMBER CO. v. KNOX, ATTY.-GEN. et al. ^[*]

No. 25267

Supreme Court of Mississippi

September 27, 1926

Division B

EQUITY.

That appeal was barred may be shown on appeal in the case, so suit to correct filing date of petition for appeal, to show it was filed too late, and enjoin prosecution of appeal, will not lie.

HON. V J. GRIFFITH, Chancellor.

APPEAL from chancery court of Perry county, HON V. J. GRIFFITH, Chancellor.

Suit by the Scranton Lumber Company against R. H. Knox Attorney-General, and others. From an adverse decree plaintiff appeals. Affirmed.

Affirmed.

Stevens & Heidelberg, for appellant.

The court was in error in dissolving the injunction because the court of equity had jurisdiction to require the correction of the record made by the defendant C. C. Dearman so as to show the true filing date; to-wit, February 27, 1924, and it was the duty of the chancery court under the facts set forth in said bill to require the correction of said record and to keep said injunction in full force and effect until the record was corrected so as to show the true filing date, and that this is true even though the court was without jurisdiction to make the injunction perpetual or to assume any jurisdiction so far as the hearing of the tax appeal itself was concerned.

Under the facts charged in this bill there was no "filing" of the petition for appeal and the certificate of the defendant C. C. Dearman to the effect that it was filed was a false certificate.

The term "filing" imports that the paper filed shall remain with the clerk as a record subject to be inspected by those who have an interest in it. Cooper v. Friarson, 48 Miss. 300.

In the case at bar, there was no such filing of the petition. It did not remain in the clerk's office as a record subject to be inspected by those who had an interest in it. This appellant had no opportunity until long after its taxes had become due and payable to even know that an appeal had been taken, much less to inspect the petition therefor. The clerk could not certify a copy of this petition because neither the petition nor a copy thereof was in his office.

One of the leading cases in the entire Union on what is meant by filing is Meridian Nat'l Bank et al. v. Hoyt & Bros. Co. et al., 74 Miss. 221, 21 So. 12. In this case much more was done than in the case at bar. If the bill in that case was not "filed," then certainly, it cannot be seriously contended that the petition in this case was filed on November 27. See, also, Morgan v. Williams, 95 So. (Fla.), 611 at 614; Beals, Administrator, v. Alexander, 6 Texas 531. Section 1008, Code of 1906, provides that all pleadings, writs, proofs and other papers relating to any cause in court shall be filed together by the clerk and carefully preserved in his office. Section 1308, Code of 1906, makes it a crime for the clerk to fail to give to any interested party a certified copy of any papers on file in his office. See 25 C. J. 1126; State v. Crossly Park Land Co., 63 Minn. 205; Yates v. Tatum, 155 P. 258; 2 Bouvier's Law Dictionary, 1219, Webster's Dictionary defines the word "filing" to have the following meaning in law: "To deliver (a paper or instrument) to the proper officer so that it is received by him to be kept on file, or among the records of his office."

If the petition for appeal was not in fact filed until February 27, 1924, then the certificate of C. C. Dearman as clerk that it was filed on November 27, 1924, is an incorrect certificate and constitutes an incorrect record made by him.

While every court of record is the guardian and judge of its own record, with full power to control and inquire into them and correct them if they are found to be incorrect, in the absence of a statute a court has no summary control over the records of an independent public office. 34 Cyc. 591. We make this citation for the purpose of showing that the circuit court is without jurisdiction to require C. C. Dearman, defendant in this case, to correct his certificate of filing. It was the record of an independent public office over which the circuit court, in the absence of statute, had no control. Equity has jurisdiction to correct the record. Vanderbilt v. Mitchell, 67 A. 97; and Vanderbilt v. Mitchell, 67 A. 103.

In the case at bar, the complainant is entitled to have the record corrected and the proceedings in the circuit court stayed or enjoined until the correction be made, in order that the certificate of the clerk as it now appears cannot be used in the trial of said case so as to give the state of Mississippi an unfair advantage in the court of law.

In Brown v. Wesson, 114 Miss. 216, it is said that in the application of the remedial powers of the court of equity, the courts appear to have acted rather upon the intrinsic equity of a particular case than upon any strict rule limiting and restraining the power so as to prevent them from doing equity. See too Fore v. Foster's Adm's, 86 Va. 104, 9 S.E. 497.

In the case at bar, unless the proceeding in the circuit court is restrained until the final adjudication of this cause in the chancery court, when undoubtedly the court will require the defendant, Dearman, to correct his certificate of filing, this appellant will suffer a most serious handicap and the state of Mississippi will get the benefit of a most unfair advantage.

Rawls & Hathorn, for appellees.

The question as to whether or not, under the facts as alleged, the petition for appeal was filed in time is one of law and can certainly be determined and passed upon by a court of law with the same force and effect, and under the same rules of evidence as if the question were submitted to a court of equity. Certainly, counsel will not contend that it will take less or different evidence to establish the facts alleged in his bill in a court of equity, than it would take to establish the same facts raised by proper pleading in a court of law. The burden is on complainant (appellee) in this case to establish the facts charged and when established, the chancery court would determine, as a matter of law, whether, under the facts, a legal filing was had on November 27, 1923. If appellant should set up the same facts in a plea in the circuit court and issue be joined, or demurrer interposed, he would have the same burden--no more, no less--of sustaining the allegations of his plea; and when sustained, the circuit court would determine, as a matter of law, whether under the facts, a legal filing was had on November 27, 1923.

Counsel contends that he ought not to be required to meet this "filing" of the clerk in the circuit court, because there he would be met with the "presumption" that the petition was filed at the time it showed to have been; that is, November 27, 1923, and that the burden would be upon the appellant to show that the filing was incorrect. Surely, appellant does not mean to contend that there would be a smaller burden on him in the chancery court. Surely, he does not mean to contend that the same "presumption" as to the correctness of the filing does not prevail in the chancery court, and that in this proceeding in chancery the burden will not still "be upon appellant to show that it is incorrect."

It being true then that the same rules of evidence apply, that appellant must carry the same burden of proof in the chancery court as he does in the circuit court and that same presumptions arise and prevail in the chancery proceedings as do in the circuit, why should this entire proceeding be halted and a tax appeal involving many thousands of dollars, both to the state of Mississippi and the county of Perry, be held up and delayed to await the settlement of an issue that can just as well, just as correctly, and just as cheaply be settled by proper plea in the circuit court? Counsel has cited no authorities at all in support of his contention.

Appellant must necessarily raise its defense in the circuit court by plea that the appeal was not taken in time. If the plea is sustained, the litigation is ended until the trial court has been reversed by appeal, and this would be true whether appellant overcome the presumption of the correctness of the date of the filing in the circuit court or in the chancery court.

A different situation would exist, of course, if it was the correction of a record in the office of the chancery clerk or the correction of some paper actually on file with him. The case of Craft v. Homochitto Lumber Co., 106 So. 440, while not directly in point, supports our position.

Certainly, in the case at bar, the circuit court is the forum to say under appropriate pleading whether or not the petition for appeal was filed in time or when, as a matter of law, it was filed.

In discussing the "Adequacy of Legal Remedy," where the principle is applied in those cases where injunction is sought against actions in courts of law, see 14 R. C. L., par. 108, p. 407; 32 C. J., pp. 98-101.

The following cases from the supreme court of Mississippi and other courts are applicable to the case at bar and throw...