Zavello v. Goldstein & Co.

WALKER., P. J.

This suit was instituted before a justice of the peace, and from the judgment in favor of the plaintiff rendered by the justice the defendant appealed to the circuit court. The assignment of error that that court erred in rendering its judgment against the defendant is sought to be sustained by the suggestion that the record fails to show that the plaintiff filed a statement of his cause of action or a. complain!-. Among the papers transmitted by the justice - to the clerk of the circuit court on the appeal to that court was a complaint in due form on a verified account, and the record contains■ also an amended complaint under the title of the case in the circuit court, but it does not show that that paper was marked or indorsed as filed by the clerk of that court. That- paper, however, is set out as a part of the record and proceedings in the cause as certified by the clerk on the appeal to this court. “In the absence of a statute prescribing what constitutes the filing of a paper, it is said to be filed whenever it is delivered to and received by the proper officer. * * * with the intention of filing it, although the fact and date of the filing are not then endorsed upon it. ”—Ow *481 ensboro Wagon Co. v. Bliss el al., 132 Ala. 253 , 31 South. 81 , 90 Am. St. Rep. 907 ; Eco parte State, 51 Ala. 69 ; 8 Ency. of Pleading & Pr. 923. The record sufficiently shows that the judgment appealed from was supported by an appropriate complaint.

Besides, as the record shows that the defendant 'filed pleas to the complaint, hut that he did not on the hearing of the case undertake to sustain them, it might be presumed, to sustain the judgment entered without objection having been made in the trial court on account of a failure to file a complaint or statement of the cause of action, that the defendant waived a filing of "such paper. —Heyman v. McBurney, 66 Ala. 511 ; Richmond & Danville R. Co. v. Jones, 102 Ala. 212 , 14 South. 786 .

In August, 1910, the defendant filed a petition for a rehearing under the statute (Code 1907, § 5372), authorizing the making of such an application on certain grounds within four months from the rendition of the judgment, and obtained from the presiding judge an order for the supersedeas of the execution issued on the judgment. The plaintiff filed a motion to dismiss that petition, on the grounds that “the petition did not give the plaintiff or his attorney notice of the filing5 of such petition or application, nor of the time when or the place where the application would be made, and did not cause a copy of said petition to be served on plaintiff before the application was made.” In March, 1911, that motion was granted. That action of the court is assigned as error. The record does not indicate that there was any attempt on the part of the defendant in making his application for a rehearing to comply with the requirements as to notice prescribed by the statute in such a case. Code 1907, § 5373. This being true, the defendant had not entitled himself to prosecute the proceeding, and the court was not in error in dismiss *482 ing his petition. ■ The motion in effect suggested the failure of the petitioner to prosecute the proceeding in the manner prescribed by the statute, and the record certainly indicates that the suggestion was well founded in fact. Any proceeding is subject to dismissal because of the failure of the party by whom it was instituted duly to prosecute it.

At the time of the submission on the appeal in this case there was also submitted a motion by the appellant, entered after the appeal was sued out and predicated upon the record brought into this court by that appeal, for the issuance of the writ of mandamus directed to the judges of the court below, commanding them or either of them to vacate and set aside the order of dismissal above mentioned. From the conclusion above announced, that the objections urged against the propriety of that action of the court are not well taken, it follows that the motion for the writ of mandamus could not be sustained, without regard to the question whether that action could be brought into question by a motion for the writ of mandamus entered after the case had been removed into this court by the appeal. —Hudson v. Bauer Grocery Co., 105 Ala. 200 , 16 South. 693 ; Supreme Lodge, etc. v. Thomas, 130 Ala. 275 , 30 South. 567 .

The judgment appealed from is affirmed, and the motion for the writ of mandamus is overruled.