On August 15, 1969 defendants were served with an original notice of an action for damages resulting from personal injuries sustained by plaintiffs on August 20, 1967. The cause, docketed as Law No. 94118 in Polk County, was dismissed without prejudice October 31, 1969 on defendants’ motion for failure to comply with Rule of Civil Procedure 55 on the ground that the petition was not on file on the date stated in the original notice. No appeal was taken from that dismissal.
The statute of limitations ran on August 20, 1969. On February 11, 1970 plaintiffs filed a second petition identical to that filed in Law No. 94118 except that a paragraph alleging plaintiffs were not guilty of negligence or lack of diligence in the prosecution of Law No. 94118 was added to bring the petition under section 614.10, Code, which provides:
“If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first.”
The trial court dismissed the second cause of action on defendants’ motion on the ground that the petition which included affidavits as to the circumstances sur*532rounding the filing of the petition in Law No. 94118 showed the dismissal of that action was the result of negligence attributable to plaintiffs and they were not entitled to relief under section 614.10.
Plaintiffs have the burden of pleading and proving their freedom from negligence in the prosecution of the first suit. Central Construction Company v. Klingensmith (1964), 256 Iowa 364, 367, 127 N.W.2d 654, 656. We therefore turn to the petition and supporting affidavits to determine whether they are sufficient to show plaintiffs were entitled to relief under section 614.10.
The original notice served on defendants in Law No. 94118 stated the petition “will be placed on file August 15, 1969”. That day plaintiffs’ counsel made arrangements with the Polk County Clerk of Court to leave the petition in the clerk’s office that evening after office hours. The custodian under the clerk’s orders let counsel into the clerk’s office. Counsel placed the clerk’s file stamp on the petition which showed: “Filed in Polk County, Iowa August 15, 1969, 8:14 p. m., Michael M. Doyle, Jr., Clerk, District Court”. Neither the clerk nor any of his deputies were present. As August 15 was a Friday, the memorandum of the filing of the petition was made in the docket the following Monday and dated August 18, 1969.
In dismissing the action under R.C.P. 55, the trial court concluded the after hour stamping of the petition did not constitute a filing of the petition under section 606.11 and that the petition was not considered filed until the memorandum of filing required by section 606.11 was made. Section 606.11 provides:
“Pleadings — when deemed filed — removal of papers. The clerk shall, upon the filing thereof, make in the appearance docket a memorandum of the date of the filing of all petitions, demurrers, answers, motions, or papers of any other description in the cause; and no pleading of any description shall be considered as filed in the cause, or taken from the clerk’s office, until the said memorandum is made. Such memorandum shall be made before the end of the next working day.”
As plaintiffs took no appeal from the dismissal without prejudice, this determination is not directly in issue and is the law of the case. However, we must consider possible reasonable interpretations of section 606.11 as the trial court’s conclusion that plaintiffs were negligent in failing to prosecute Law No. 94118 was based on the finding that plaintiffs’ counsel was charged with knowledge that the petition would not be “considered filed until it had been docketed” and that “the court’s ruling in Law No. 94118 is consistent with the law as it has been interpreted in Iowa for more than fifty years, and plaintiffs may not cite the 1969 amendment to this section as an excuse or accident relieving them from the charge of negligence”.
The 1969 amendment to section 606.11 deleted the word “immediately” before “make” in the first sentence and added the last sentence which according to the “explanation” attached to Senate File 590 was intended to make it “ * * * clear that the clerk has at least one working day in which to docket these matters”.
There was no change in that part of the section which provides “no pleading of any description shall be considered as filed in the cause * * * until the memorandum is made”.
Our early cases held this clause created a mandatory duty to make the memorandum entry and no pleading has been “considered filed” until the entry was made. Farmers’ and Merchants’ Bank of Aurora v. Wells & Potter (1920), 189 Iowa 1312, 1314, 179 N.W. 838, 839; Johnson v. Berdo (1906), 131 Iowa 524, 527, 106 N.W. 609, 610; Simmons v. Simmons (1894), 91 Iowa 408, 410, 59 N.W. 272, 273; Winkleman v. Winkleman (1890), 79 Iowa 319, 322, 44 N.W. 556, 557; Everling v. Hoi*533comb (1888), 74 Iowa 722, 724-725, 39 N.W. 117, 118; Nickson v. Blair (1882), 59 Iowa 531, 532, 13 N.W. 641; Padden v.Moore (1882), 58 Iowa 703, 706, 12 N.W. 724, 725. The cases also hold the memorandum entry was directory only as to all papers other than pleadings. Farmers’ and Merchants’ Bank of Aurora v. Wells & Potter, supra; Simmons v. Simmons, supra ; Everling v. Holcomb, supra.
We are not persuaded, however, that the change made by the legislature is so unrelated to this portion of the section that it was negligent to believe the filing date of the petition would be August 15 when it was delivered to the clerk’s office on that date.
The change of the language from “immediately” make a memorandum entry to language giving the clerk until the end of the next working day to make the entry has serious implications to the practicing attorney and litigants. Under the previous wording of the statute, the lawyer knew it was the clerk’s duty to make the memorandum entry “immediately” and the file mark had some significance and could be relied upon. True under the cases cited above the lawyer and his client could be in difficulty if the clerk failed to perform his duty, but if the clerk did what he was supposed to do, the filing date and time would be the same on the file mark and the docket entry.
After the amendment there is not necessarily any relationship between the information shown on the file mark and the docket entry. Here, there is a three day difference even though the clerk properly performed his duty under the statute. If the date of filing is determined by the docket entry rather than the date of delivery to the office the file mark loses all significance. How then could the court determine which party commenced an action or opened an estate first? Counsel would be required to wait until the clerk made the memorandum before he would know the filing date. He would have no authority to insist that- the clerk make the entry the same day the papers were delivered to this office. In practice, allowable filing times would be shortened by at least one day in order to make certain papers were filed on time.
Many practical problems could be avoided if the statute as amended were considered to make the fact of filing dependent upon the memorandum entry in the docket but relating the date back to the date of actual filing. It is also true that questions would arise as to the timeliness of an answering pleading when the date is related back. We are not attempting to resolve the questions here, but are considering these problems as they relate to counsel’s negligence.
We do not believe it negligent to take the position that the legislature, in making this change for the expressed purpose of giving the clerk an extra day to make his record, did not intend to cause the many complications which arise if the date of the memorandum is considered the filing date.
Other than some dictum in Nickson v. Blair, supra, we found nothing in our cases which indicates that the date of filing should not relate back to the date the papers were delivered to the office even though they could not be “considered filed” until the memorandum entry is made. The relating back of the date does not conflict with the wording of the statute which uses the word “filing” in connection with the delivery of the papers to the office.
“The clerk shall, immediately upon the filing thereof, make in the appearance docket a memorandum of the date of the filing of all petitions * * * and no pleading * * * shall be considered as filed in the cause * * * until the said memorandum is made.” (Emphasis supplied.)
We do not consider it negligent to interpret this language to mean that the filing date is the date of delivery of the pleading to the office although the pleading is not “considered filed” until the entry is made.
*534As stated earlier in the.opinion, no appeal was taken from the ruling of the trial court in Law No. 94118 that under section 606.11 the petition was not filed as stated in the original notice. We therefore are not passing upon the matters discussed above or upon the question as to whether the amendment changed the duty to make memorandum entries of pleadings from a mandatory duty to a directory one only. We only hold here that such position is not so unreasonable as to constitute negligence on the part of counsel and that plaintiffs have by their pleadings and supporting affidavits brought themselves within section 614.10 and have stated a cause of action.
For the reasons stated the case is reversed and remanded for further proceedings in accordance, herewith.
Reversed and remanded.
All Justices concur except UHLEN-HOPP, J., who dissents.