Archer v. Long

24 S.E. 83, 46 S.C. 292, 1896 S.C. LEXIS 43

• Court: Supreme Court of South Carolina
• Decided: March 21, 1896
• Status: Published

Opinions

The opinion of the court was delivered by

Mr. Justice Gary.

This is a motion to reinstate the appeal herein, which was dismissed by the clerk of this court, on the ground that the return was not filed within the time prescribed by law.

It appears that Messrs. Duncan & Sanders, the plaintiffs’ attorneys, served Messrs. Carlisle & Hydrick, defendant’s attorneys, with notice of motion, before his honor, W. C. Benet, Circuit Judge, at Spartanburg Court House, on Wednesday, 7th August, 1895, for an order allowing the plaintiffs to introduce testimony in their behalf, before J. W. Nash, who had been appointed special master, showing the value of certain property mentioned in the notice. After hearing argument for and against the motion, his honor, Judge Benet, said that he would refuse the motion, gave his reasons for so doing, and requested the attorneys for plaintiffs and defendant to each prepare an order incorporating the reasons assigned by him for refusing the motion. On the next day the attorneys for plaintiffs and defendant each presented an order, and his honor signed the order as prepared by the attorneys for defendant, after it had been submitted to and read by the attorneys for the plaintiffs. This order was filed in the Court of Common Pleas for Union County on October 5, 1895. Messrs. Duncan & Sanders, shortly after the granting of said order, withdrew from the case, and on the 28th day of August, defendant’s attorneys served upon W. W. Thompson, Esq., one of the plaintiffs’ attorneys, a copy of the order of his honor, Judge Benet. On the 10th day of September, 1895, defendant’s attorney received through the mail a letter from the said W. W. Thompson, Esq., enclosing notice of intention to appeal, with exceptions. On the following day, September 11, 1895, and by the first mail going from Spartanburg to Greenwood, defendant’s attorneys enclosed said notice of appeal, with endorsement that it was not served within the time required by law. On October 15, 1895, W. W. Thompson, Esq., served upon the defendant’s attorneys a second notice of intention to appeal from the order of his honor, Judge Benet, and also the exceptions to said order. Defendant’s attorneys immediately returned the same, with the endorsement that they were not served within the time required by law. Mr. Hydrick, one of the defendant’s attorneys, in his affidavit, states that the order of his honor, Judge Benet, was not filed in the office of the clerk of the court until October 5, 1895, and that the reason said order was not filed earlier was that deponent had it with the record (a large bundle of papers) before Judge Belief, at Spartanburg, and, as deponent expected to go to Union to attend a reference immediately after the adjournment of the. court at Spartanburg,.he thought it would be safer and better to wait until he went down to Union, and carry the records down by hand; but the reference which the deponent expected to attend was postponed, and deponent thought no more about the papers until the 5th of October, 1895, when Mr. Thompson served him with a notice in this case, and, upon its being brought to mind, he immediately forwarded all the papers, including said order, to the clerk for Union County.

The sole question involved in this case is, whether the time within which the plaintiffs were required to serve their notice of intention to appeal, commenced to run from the time that written notice of the order was served upon plaintiffs’ attorneys, to wit: on the 28th of August, 1895, or from the time said order was handed to the clerk of the court to be filed. Section 345- of the Code provides: “In every appeal to the Supreme Court from an order, decree or judgment granted or rendered at chambers, from which an appeal may be taken to the Supreme Court, the appellant or his attorney shall, within ten days after written notice that such order has been granted, or decree or judgment rendered, give notice to the opposite party or his attorney of his intention to appeal,” &c. An order does not become a public record nor confer rights which may be reviewed on appeal until it has been handed to the proper officer for filing. “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.” 1 Bouv. Taw Diet., 524, cited with approval in Sternburger v. McSween, 14 S. C., 43. So important does the law regard the act of filing, that, under the act of 1879 (16th Stat., 411), which requires agricultural liens to be filed in the office of the register of mesne conveyance, and an index thereof to be kept by that officer, a lien filed and immediately thereafter withdrawn by the lienee and retained in his possession, is not constructive notice to third party, notwithstanding the proper entry appears in the index. Sternberger v. McSween, supra. The importance of filing is also shown by the case of Cromer v. Boinest, 27 S. C., 445. In the case of Sternberger v. McSween, the court says: “When papers are placed on file in a public office, they become public records, open to the inspection of the public, under proper regulations,” &c. Until the paper has been delivered by the judge to the clerk of the court, to be filed by him as an order in the case, it is subject to the control of the judge, and may by him be withdrawn at any time before such delivery. In the case of Genobles v. West, 23 S. C., 160, the Circuit Judge well says: “A judgment is the final determination of the rights of the parties in an action. While the written instrument, purporting to be the judgment, in a cause remains in the possession of the judge who is to pronounce it, it is of no effect, and, like a deed, not delivered. The moment, however, it is filed by the clerk of the court, it becomes the judgment of the court, and fixes the rights of the parties. The recording of the judgment or order is only to give notice, and secure the safety of the record of the solemn acts of the courts. This seems to be the principle on which the case of Clark v. Melton (19 S. C., 498,) is founded.” The reason for the strict compliance with the law is for the preservation and public inspection of the records, which would, to a great extent, be prevented if a paper should be regarded as a record in the case before it had been delivered to the proper officer for filing. Some support is -given to the views we entertain by the case of State v. McKetrick, 13th S. C., 439, in which the Supreme Court refused to hear the appeal from the sentence imposed upon the prisoner, because it was sealed and had not been published when the prisoner appealed from the sentence. See, also, Bank v. Gary, 14 S. C., 571. The time within which the appellants were required to serve notice of their intention to appeal, commenced to run when the order of his honor, Judge Benet, was handed to t-he clerk of the court to be filed, to wit: on the 5th of October, 1895.

The clerk of this court was, therefore, in error in dismissing the appeal herein. The order carrying out these views has already been filed.