, 1870-05-23
THE LAW COURTS.
Supreme Court DecislOn-When
aPapcr Is Filed In Court.
The Diversy Estate-Filing Of an In.
vsntory-Net vslue, &439,s7435.
BUPRENE COURT,

HHES A PAf1R II F1LxD N ouCEr xEp wus
IT II not.
James Hamilton =. Charles Bearda1ey and OIL
etA Appeal from Superior Court of Chicags
walker. Justice This wHa IN action Of assunny
az bruugh: In the Superior Court Of Chicago. o
1ne default day Of the return term, no plea beln
nIed4 3 judgment By dcfault wss rendered. A,
. peNAots appeared by their attorney and resiste
the rendition OF the Judgment on the grounds tha
declaration had not been nlcd ten daTs befor
the nrss DAY OF the term. On motion to set ss1tt
The default and to be let In to plead, sppeauts q,
solney sHeaIS thas he examined the MES In Il
case, N tne CLERKS Office, On the 2sd daY oY Jann
~. ISL, ana that no declaration Taz then filel
tnaI be made further examination on the aotr
%en as msae tss Ias On a.
oaS, ne, noWeFef, found a paper purpprttnv TO u
oseAIaaon IN the case, but having npon It n
this last day, and he then informed appellant IDS
Ae vas not bound to plead st tnat term
re Aso states that appellees counsel adnitted, IN
been placed upon the declaration upon the second
Gay Of the term. Dctendau. swcars he has 4 n1er.
m9mous defence consisting of large anonnt ,. o.
bronght and that his a:toruey advised hin thst he
Eas not required, under the practice OF The conrt
emna1d az F a,oe4 an " tho III dsy Of jan
usry, 1863, to defend the suit
The counsel for appellees swca5s tnas he M pre-; .;
January, 1s59, and sent It BY clerk II big ONCE.
on tlat day to be filed in the case BY the CLERK Of
that On the es1 Of January, 1863 be took the dec
1arattons to the Clerk Of the Superior couEf, and
led them In thar cfee. at and On the desk usually
in presence Of several OF the deputies who were
there and kaw him; had lied o;her declarations
In thAt manner.
on thc hearing OF the motion, 1t was overuled
by the cpur and the case Is brought TO this court
by appeal and reversal y urged, because the
coUfr below allowed 3 defau1t 10 be entered.
This record nfcEGutR the question whether the
declaration was dled ten days before the CON-
mencement Of The return term. Itsands admitted
and appellants counsel s1ests he searched for
declaration on the next day after the dune had e1-
p1ed for hing declarations for the February term,
and, again, Ave days subsequently, and Tas unable
to nnd any declaration, and even on the FIRST day
Of the term. when IL was found, it was not marked
Wa The esfk aa oss n q = na e
handed Il to the clerk or deputy and called atten-
ton to the fact that ne desired to ie It; he only
paper in a cause it must bs placed in the hands
and nnir1 tAt control Of the clerk; # must pass
into his exclusive custody and remain within his
70 render It part OF the records Of his ONCE, and
that object must be communicated to him In some
manner capable Of baiug understood. We do not
say that ii should OF could he alone communicated
by Language written or verbal. hut that he must
ID son,t mode or order be informed that the party
that Il AZ attorney directed ali papers found |
IL his of1ce, ID causes In the court signed By |
hiIn, Should he nied, and he acted UPON such
direction and actually f1ed such 4 psper,
SO found, that 1t wUuld be Sufficient, but ID this
case no sucn direction Is proved, ind even II 1t
the declaration ever came to the hands OF the |
clerk prior 10 the frst dAy Of the term. |
The design of the Law is that q defendant m8y
have ten days before the term to know with what
ne Is charged, d to prepare Tor hts defence, and
the sta1tt has declared that II the declaration Is
not Ale that length Of time before tho term thst
the case shall be continued. In this case the de-
iendant sWc1rs that he has mer1toTious defence
TO part Of the cause Of action aud hts attorney
see The declAlahUn but WtnOnE success. and hence
he did not have the opportunity to prepare his de-
fence which the Law has provided he shall have.
The clerk nor any OF his deputies, we're pro-
duced to show that the declaration had been
placed in the dcs for the requisite length OF time,
or amongst the papers Of the case To hold thAs
such acts constitute the Hing OF = declaration
would be TO sanction ps8cucc 10 1oose that ntt-
Eauts cou1e, and many times would, suffer great !
nled, and IN tie custody Of the CLERK, that appel
1auts counsel could have had access to 1t, or, Oh
The clerks refusing to permit him 80 see 1t,
he could have had his remedy against the |
clerk We arc Clearly Of opinion thot the evidence
falls to show that this declaration wns filed ten
days before the term.
Nor did the fact that tho c1erk, without au-
fno1ty, marked the paper nled, and ante dated the
endorsement, in the least alter the rignta of the
parties He should not so hare dated II II mp
1eleeA counsel had desired to have It fled as OF the
3fst they filed uruac pro tunc On such an npplica-
tion would have been for the Court, in view OF |
al the circumstances, 70 detetnine whether such |
I'll order shsuld be made.
Judgment reversed.