Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-28

Nothing further was done In regard
thereto, untii after the time for filing
had expired, when different requests
we're made by counsel for the parties,
as to the date of filing marks to be
endorsed thereon, and the matter was
held in abeyance until the next month.
The clerk states that the fees were
paid as requested, but that he does not
remember OF any specific demand be-
ing made by counsel for contestee, to
file the transcript until July "a, 1911,
when he was requested by one Of the
attorneys for coptestee to file the same
as Of July IS, 1911; but that request
to do so might have been made by
them on either July 13 or Il, 1911.
The transcript was ordered and made
for no other purpose than for filing,
and the form Of the request is not
material. The affidavits Of A. N. So
liss, r. NJ. Duncan and ]. w. McCul-
loch, attorneys for contestant, in sup
port of the motion, are to the effect
that two Of the counsel for contestant
examined the transcript on the even
ing of July 2l, 1911, and found 1t not
marked as filed that they were in
formed by the clerk that no request
had been made to file the same, and
that the filing fee was not paid until
August IA, 1911; that on August 10.
1911, similar examination was made
before the transcript was marked
filed; that George E. Davis, one OF
the attorneys who claimed to have
examined the transcript. was not in
Malheur county on July IA, 1911, and
was absent from Vale from July IL
until July is, 1911. AS 1t appears
from the decree, at the time of the
argument, Judge Davis stated that he
was not certain whether he was in
the county clerks office on July 14th
or 18th, 1t might be noted that 1t is
the accuracy as to dates, and not the
veracity of the affiants, that is ques-
toned. There Is no controversy over
the fact that the transcript was pre-
pared and certified to, and in the
hands of the clerk on July 10, 1911
where 1t remained. This last date Is
the only one that serves as guide
the endorsement of the filing having
been made about a month after the
controversy arose
Section 547, l.. o. L., provides thai
pleading or paper shall be filed by
delivering the same to the clerk at his
office, who shall endorse upon 1t the
date, and subscribe his name thereto
A paper is said to be filed when It II
delivered to the proper officer and b!
him received to be kept on file. Bou
vier's Law Dict, 19 eye. $50, In re
ferring to the above provision Of sec
tion SAT, l.. o. L., Mr.. Justice Bean II
Conant's Estate, 43 Or. $50, 5S4, re
marks. at will be observed that thi
, statute does not make the indorsemen
by the clerk a prerequisite to the III
' ing, or provide that no paper shall b.
, deemed filed without such indorse
ment. The filing consists in delivering
the paper to the clerk with an inten
, ton that 1t shall be filed. The Law
9 imposes the duty upon the clerk o
making the proper indorsemen
thereon, but his failure to do so can
not affect the validity of the filing
: A paper or document is filed with
{ in the meaning of this statute whei
e 1t is delivered to and received by th
4 clerk to be kept among the files o
E his office, subject to the inspection o
a the parties"
S In the case at bar, the affidavit
E for the motion to dismiss, show tina
on July 21, 1911, the attorneys aske'
D for the transcript, received the sam
and examined IT, II is urged tha
4 It was in drawer in the clerks OF
/ fee, but this suggestion is withou
: force, as 1t is doubtful II in many o
/ the counties, there are a sufiicien
number Of appeals to the circui
I court, to require a certain place fol
Z the transcripts on appeal TO be regu
. larry kept. The a7dayits appear Il
, have been prepared upon the theorl
that the time for filing expired OF
1 July 10, 1911, and show that not onl!
Z was the transcript prepared, but th'
; same was examined and approved b!
3 the attorneys for contestee. Th'
mere matter of an amendment to thu
certificate thereof would not depriy'
I the appellate court Of the jurisdiction
r which 1t acquired upon the filing OF
: copy Of the decree Of the countl
: court appealed from, notice Of appea
Z with proof Of service thereof, and un
) dertaking. Sec. 554, L. 0. l.. Th'
3 transcript should be endorsed al
: filed July 1,3 1911, that being th'
$ date Of the certificate,
2 It is also now claimed that thu
! fees required by law for filing thu
transcript were not paid within th'
} proper time. This. however, was no
z the basis Of the motion to dismiss th'
I appeal, nor was 1t referred to there
e in. It is clearly shown by the un
1 Lcnntradicteh afidaYlta. that Il was no