Appellant contends that if a document is presented to the clerk for filing, and the fees, if demanded, are paid, the document is by that act filed, whether it is marked "filed" or not; that the act of placing the file number or mark upon the instrument, the placing of it in the proper file, or doing whatever else that may be necessary devolves upon the clerk, who is elected and paid to perform the duties of his office, and he is presumed to do his duty; that when a person desiring to have a document filed has done all he can do to accomplish that purpose, and the officer actually accepts the document for filing, it would be contrary to public policy to hold that the document is not filed. Golden v. McKim, 45 Nev. 350, 204 P. 602.
From the date of the decision by BIGELOW, J., in *Page 10 21 Nev. 184, 27 P. 376, 1018, to the last expression of this court in In re McGregor, 46 Nev. 407, 48 P.2d 418, this court has, so far as I can learn, always held to the proposition that cases must be decided on their merits when possible, unless prevented by mandatory statutes or mandatory rules of court. And this court has stated that it is indulgent in setting aside such defaults. Guardia v. Guardia, 48 Nev. 230, 229 P. 386. It is submitted that this court would not consider making any order extending time for an act to be done, not in this court, but in a separate tribunal, viz, the trial court. Particularly so where the proposed extension would (as here) have to relate back to April 1, 1935, and prior to this court having any jurisdiction whatsoever over the case. The default for which relief is sought is appellant's failure to file its bill of exceptions with the clerk of the trial court. Joudas v. Squire, 50 Nev. 42,249 P. 1068.
The so-called bill, filed in this court, never having been filed in the trial court, of course never became a part of the record of that court. To allow appellant's application would be the making of a new record; would be making up a record on appeal in this court, instead of in the trial court. This court has repeatedly held that the bill of exceptions must be made up, perfected, filed, etc., in the trial court, and that this court has no power to permit the making up of such record, or entertain the same, when it was not made up, filed, etc., as required by law, in the trial court. Water Company v. Belmont Dev. Co.,49 Nev. 172, 241 P. 1079; Caldwell v. Wedekind M. Co., 50 Nev. 366,261 P. 652; Lamb v. Lamb, 55 Nev. 437, 38 P.2d 659; Capurro v. Dist. Court, 54 Nev. 371, 17 P.2d 695; Quinn v. Quinn, 53 Nev. 68,292 P. 620.
It is not the duty of the clerk of the court below, or of the trial judge, but it is the duty of appellant to see *Page 11 to it that his bill is seasonably and properly filed in the trial court. 4 C.J. pp. 298, 299, 302, secs. 1913, 1915, nn. 64, 65, 71, 72, 73. OPINION This is the third time this matter has been before us; the first time on a motion to strike the bill of exceptions [49 P.2d 358], the second time on a motion for an order granting leave to appellant to file a copy of the judgment roll [50 P.2d 944], and now on motion of appellant for an order extending the time in which to file and serve a bill of exceptions, and a counter motion of respondent to dismiss the appeal.
Counsel for appellant has filed in this matter, in support of this application, an affidavit and a supplemental affidavit, from which it appears that the tendered bill of exceptions was, on April 15, 1935, deposited in the office of the clerk of the trial court, and immediately thereafter a copy was served upon counsel for the respondent. It appears from a certificate of the trial judge that the tendered bill of exceptions was duly settled by the trial judge on April 22, 1935, but it does not appear from the bill of exceptions itself that it was filed in the lower court. This failure may be due to an oversight on the part of the clerk of the trial court. If this be true, an opportunity should be given to rectify the oversight.
1. To constitute filing it is not necessary that the clerk make the notation of filing, for all that a litigant can do in the matter of filing a document is to deposit it with the proper official and pay or tender the fee therefor, if there be any. Hook v. Fenner, 18 Colo. 283, 32 P. 614, 36 Am. St. Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 P. 697; Wilkinson v. Elliott,43 Kan. 590, 23 P. 614, 19 Am. St. Rep. 158; President, etc., Manhattan *Page 12 Co. v. Laimbeer, 108 N.Y. 578, 15 N.E. 712; Beebe v. Morrell,76 Mich. 114, 42 N.W. 119, 15 Am. St. Rep. 288; 25 C.J. 1126.
We do not know what the practice is, but we have understood that there is no fee chargeable for filing a bill of exceptions.
2. This court has repeatedly held that it is reluctant to dispose of a case except upon the merits. Appellant makes a strong showing to the effect that there was no neglect in filing and serving the bill of exceptions, but purely an oversight on the part of the clerk of the lower court to indorse upon the bill of exceptions that the same had been filed.
3. The spirit of the law as appears from section 45, c. 90, Stats. 1935, is liberal in the matter of amending a record on appeal, and we have held that a bill of exceptions may be amended and corrected. Brockman v. Ullom, 52 Nev. 267, 286 P. 417; Taylor v. Taylor, 56 Nev. 100, 45 P.2d 603.
4. Upon the showing made in this matter, we think both motions should be denied, and that an opportunity should be given appellant to make the bill of exceptions show that it was filed in apt time.
We think appellant has mistaken its remedy.
It is ordered that appellant may apply in fifteen days, upon proper notice and showing, for an order (1) vacating the order heretofore made striking the bill of exceptions, and (2) for an order remanding such bill of exceptions to the clerk of the trial court for amendment in the matter of showing a filing, in accordance with the facts. *Page 13