Dissenting Opinion.
Fenner, J.The motion to dismiss is found in the record, but without the usual endorsement of filing by the Clerk.
■ The affidavit of counsel that the motion “ was written by him on the 22d of April, 1881, in the clerk’s office of the Supreme Court, one of the Clerks in said office furnishing him the paper; that, after he had written the motion, he handed it, with the transcript, back to the Glerlo or one of the deputies, which one he does not now remember, with the request that he file the same ; that he first discovered that the motion had mot been filed on the 2d of August, 1881, and immediately called the attention of the Clerk of this Court to this fact.”
Nothing is presented tending, in the slightest degree, to impeach or contradict this affidavit, and it must be accepted by us as importing absolute verity.
I fear that members of the bar will be surprised, if not alarmed, to learn that, in the performance of-that most common of all their duties, the filing of papers in court, they are required to do more than was done by the counsel in this case, under risk and peril of the gravest penalties and'forfeiture of rights of their clients, and the consequent danger of serious responsibilities to themselves.
The following authorities seem to me to indicate the proper solution of the question.
' Bouvier adopts as his definition of the word “file,” the following quotation from lStk-Vinney’s Abridgement, p. 211: “A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file.” Bouvier L. D., verbo “ File.”
Abbott defines it: “ to place papers on a file; or, more generally, to deposit papers in official custody, or receive them officially for orderly, systematic safe-keeping.” He further says: “ To file, and filing, mean the act of either party bringing the paper and depositing it with the *155officer for keeping, or, the act of the officer in folding, endorsing and putting up the paper,”—thus distinguishing between the duty of the non-official person, who files a paper with an officer, and that of the officer himself.
In a criminal case before the Supreme Court of Indiana, objection was made that the indictment had not been filed in the Circuit Court; but the Court said: “ We understand a paper in a cause to be filed when it is delivered to the clerk and received by him to be kept with the papers in a cause,” and concluding that “ the statements sufficiently show that the indictment had been delivered to, and received in his official capacity by, the Clerk of the Circuit Court,” the Court overruled the objection. Engleman vs. State, 2 Ind. 92.
In a case before the Supreme Court of Kentucky, it was held that where an answer was lodged with the clerk and found among the papers in the cause, though not noticed on the record, the Court should respect it and direct its appearance to be entered nunc pro tunc. White vs. Lewis, 2 A. K. Marshall, 123.
“ In this country, and at this day, filing (papers) means, agreeably to our practice, depositing them in due order in the proper office.” Naylor vs. Moody, 2 Blackf. 248.
The Supreme Court of New York said : “It is a mistake to suppose that the marking or endorsing on a paper the time of filing it, is the substantial thing or the act of filing. Such an endorsement is merely a memorandum of the time of filing, and not the filing itself. The filing consisted in presenting at the proper office and leaving it there and depositing it in the proper place with the papers in the office. This was done in the present case and was all the appellant could do, and all the law required of him.” Covey vs. Noggle, 13 Barb. 329.
Where a plea was sent to plaintiff’s attorney, but miscarried, and judgment by default was entered for want of a plea, on affidavit, the Court finding that the omission resulted from aecident and not negligence, reopened the default on terms. Fenton vs. Garlick, 6 Johns. 287.
Where a plaintiff was ordered to file replication in ten days or that it be deemed abandoned, and he inadvertently filed a copy of the replication instead of the original, he was allowed, after the time, to correct the error and file the latter. Short vs. May, 5 Sandf. N. Y. 639.
Allowance of pleading out of time is a matter of discretion. Hair vs. Moody, 9 Ala. 399.
Statutes fixing time for filing papers in a cause are merely directory, and the Court has it always in its power, in the exercise of a proper discretion, to extend time whenever the ends of justice would be promoted. Woods vs. Fobes, 5 Cal. 62.
*156Art. 176 of our Code of Practice, quoted in the majority opinion, strongly confirms me in these views. The whole duty imposed, by that Article, on the attorney or his client is, that the petition “ must be delivered to the clerk of the court to whom it is addressed,” while ■it is made the exclusive duty of the clerk to “ receive it and endorse immediately the date of the day, month and year when he received it.”
When one has performed the whole duty imposed on him by the law, he cannot be prejudiced by the failure of others to perform their duties. An attorney who has delivered a paper to the clerk with the request or order to file it, is no more responsible for the failure of the clerk to perform his duty in marking it “filed,” than he would be for his failure in his duty to preserve and take care of the paper so filed.
In case of loss of the paper through negligence of the clerk, the party, upon affidavit, would surely be permitted to .supply it. On the same principle, and upon the like affidavit, in the present case, he should have remedy for the neglect of the clerk to perform his plain duty of marking the paper filed.
The objection that our jurisdiction is appellate and revisory only, has no application to our capacity, common to every court, to inquire and ascertain what proceedings, authorized by law, have been taken in our own tribunal.
The authority quoted with reference to the failure of a recorder to record a mortgage filed or deposited with him for that purpose, has no application. There the law expressly gives effect to the mortgage as to third persons only when actually “recorded,” and not when merely jfiled for record. Had the law given such effect to the move filing of the mortgage, the decision referred to would not have been rendered, as appears from the decision itself.
In the instant case, I consider that the appellee has filed his motion to dismiss within the delay allowed, has done all that the law required of hint and has an absolute right to have it considered.
If there were a doubt about his unqualified right, we should yet exercise our discretion in averting from him and his client deprivation of rights resulting, without fault on his part, from the mere negligence of some clerical officer of the Court.
I must, therefore, dissent.
Mr. Justice Todd concurs in this opinion.