Opinion on the Merits.
In view of the returns'so made, we are satisfied that plaintiff’s counsel offered in evidence on behalf of his client, with leave to substitute copies, and produced for the inspection of the court, the two original acts of sale upon which this suit is based, and which were (or belonged) in the custody of the clerk of the court in his capacity as ex officio recorder of the parish.. In fact we find it inconceivable that, as between a member of the bar and a judge, both of the highest standing and unimpeached integrity, the one should ask for, and the other should render, in a ease in which issue had been joined, a judgment for plaintiff, upon the mere presentation of the pleadings without the offer of evidence, oral or written. That defendant’s counsel understood the deputy clerk to make the statement recited in counsel’s affidavit we have no manner of doubt. But it is exceedingly difficult, in any given case, for two parties to a conversation to know whether they have really understood each other, and, in view of the fact that the statements attributed by the counsel to the deputy clerk would, if correctly understood, convict the deputy of having deliberately, while acting under the obligation of his oath of office, made, upon the minutes of the court, as true, an entry which he knew to be false, we conclude that he must have been misunderstood; the probability, as we think, being that he confused the offering of evidence with its filing, and that what he meant by his statement was that no evidence was actually and physically put into the record. It is to be remembered that in the instant case, as no one requested it, no note of evidence was required, and the minute clerk had so little to do that what he did may readily have escaped his memory, after a lapse of, say, five months, so that, if the counsel correctly understood him, we conclude that he had forgotten what happened. In any event, the counsel’s recollection of the deputy’s oral statement would be insufficient to justify us in holding that the entry made by the deputy upon the minutes of the court, reading “Case tried, evidence adduced and closed,” does not import absolute verity.
We are equally satisfied, however, that the two acts, though offered in evidence and submitted to the inspection of the court, were not filed, or intended to be filed; and our conclusion is that, in the absence of the defendant, the failure of the plaintiff to produce and deliver to the clerk, to be- by him made part of the record, the documentary evidence necessary to the judgment which he obtained is fatal thereto. The courts of last resort throughout the country differ as to the obligation of a party in interest with respect to the indorsement by a public officer of an instrument delivered to him in his official capacity, the difference hinging upon the varying definitions which have been given to the term “filing”; but there is a consensus of opinion to the effect that, where the obligation rests upon a person to place a document of record, in a particular office, or under particular circum*271stances, such person must, at least, deliver the document to the officer whose duty it is to make, or keep, the record, with the intention that he shall make upon it such indorsements for its identification as the law may contemplate.
In Stafford v. Harper, 32 La. Ann. 1076, plaintiff, who had offered in evidence certain records pertaining to another case, but had not produced or filed them, moved to dismiss the appeal, because they had not been copied in the transcript, and, upon the first hearing of the matter, the court set aside the judgment and remanded the case.
A rehearing was granted, however, the judgment so rendered was set aside, and it was held that (quoting the syllabus):
“An appeal will not be dismissed because documents offered, but not introduced in evidence by the appellee have not been transcribed in the record.”
In the course of the opinion it was said:
“Litigants who introduce written evidence offered should produce it and then see that it is properly noted and filed. White v. Union Bank, 6 A. 162; Leflore v. Carson, 7 A. 65; State ex rel. Slocomb v. Rogillio, 30 A. 833. The court has no authority in determining cases to consider as in evidence documents not introduced and. not described and filed. Clerks have no right to include in a transcript such evidence which was not produced and filed.”
In Ford v. Brooks, 35 La. Ann. 151, the question at issue was whether a motion to dismiss the appeal should be considered, the objection being that it had not been filed within three days after the filing of the transcript. Bermudez, C. J. (with two of the Justices, concurring), was of the opinion that, even conceding it to have been shown that the motion was handed to “one of the clerks in the office,” within the legal delay, it could not be regarded as having been filed, since it lacked the indorsement of the clerk with the date on which it came into his hands. Fenner, J. (with Todd J., concurring), dissented, holding, in effect, that (quoting Bouvier’s definition):
“A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file.”
In the instant ease, not only were the documents not indorsed by the clerk, either with the effect of identifying them with the case or otherwise, but they were not delivered or tendered to the clerk, and it was not the intention that they should go into his hands, “to be kept on file.” The district court is, however, a court of record, and the law contemplates that the pleadings and written evidence upon the basis of which suits therein brought are decided, together with the judgments, shall be there placed, and remain, on record, for the information and benefit of those who may, at the time or thereafter, be interested in them.
It is not sufficient that a plaintiff, suing on a promissory note, or other written instrument, should exhibit it to the inspection of the judge and then, having obtained his judgment, carry the instrument away with him, leaving only the allegations of his petition and defendant’s denial thereof to show why the judgment was rendered. A resident defendant has a year, a nonresident, two years, within which to appeal, but what relief would that remedy afford to a defendant against whom a judgment is rendered, in his absence upon the exhibition of an instrument, with leave to substitute a copy, if, when he comes to avail himself of it, he is informed that the instrument has been lost or destroyed, and particularly if the defense set up by him was that it was forged. And, in any event, what means has he of identifying, for the purposes of his appeal, the instrument which may then be produced with that upon which the judgment is based. No trial judge could be expected to remember, distinctly enough to enable him to identify it, a particular in*273strument upon which he is said to have rendered a judgment a year or two years before, and yet the possible difference between the instrument sued on and an instrument which a plaintiff may produce, at a later date, for the purposes of a defendant's appeal, may be a very important one. Where a defendant- sui juris is present at the trial, he may consent that the plaintiff offer an original document without making it part of the record, and thereafter substitute a copy, and trial judges may sometimes render judgments upon records which contain neither originals nor copies; but, as in the case of judgments based upon stenographic notes which have not been transcribed, there is always the risk that the evidence upon which they are based may never thereafter materialize in the shape contemplated by the law, and that serious injury may result therefrom.
[2] The question here presented, then, is not whether the documents offered by plaintiffs were indorsed “filed” by the clerk, but whether they were filed in the sense of being delivered to the clerk for such indorsement; and that question is clearly to be answered in the negative: First, because the originals were offered, with leave to substitute copies; and, second, because it would have been illegal to have offered documents forming part of the archives, of the recorder’s office on any other conditions; in fact, it was unauthorized and uncalled for to offer them at all, and presumably was done merely to save a few dollars of costs. We find no reason to doubt that the act of sale by which plaintiff acquired was not in its place in the recorder’s office when defendant’s counsel asked to see it — otherwise the deputy would have shown it to him; and it is quite certain that no copies of either of the acts had then been delivered to the clerk (in fact, never have been, as we understand). It was therefore wholly irregular for the deputy, in making up the transcript, to write therein, beneath the copies, then and there made by him, “Filed in evidence by plaintiff, June 7, 1916, and marked P. A. and P. B., respectively”; since the acts of which they purport to be copies were not filed by plaintiff on June 7, 1916, or at any time, and they were not then, or at any time, marked as thus indicated. The act from O. H. P. Sample to S. G. Sample (which the clerk has sent up) bears upon one of its edges a letter B, such as almost any child could make and such as no human being, after a little interval of time, could be certain, without extrinsic aid, that he had made. It is the duty of the clerk in making a transcript to copy accurately the record which he is called on to transcribe, so that his transcript shall tell the truth and nothing but the truth, and he has no right to exhibit therein, as filed in evidence on a certain date, a document that was never filed or delivered to him to be filed.
For the reasons thus assigned, it is ordered that the judgment appealed from be annulled, and that this case be remanded to the district court, to be there proceeded with according to law and to the views expressed in this opinion; the costs of this appeal to be paid by the plaintiff.
PROVOSTY, J„ dissents.