Bostwick v. Flemming , 2 Ark. 462 ( 1840 )

Dickinson, Judge,

delivered the opinion of the court:

The only question presented for our consideration is whether a copy of the instrument sued on must, in addition to the copy set out in the petition, be filed in the Clerk’s office at the time of the commencement of the suit. By reference to the statute authorizing the mode of proceeding by petition and summons, the plaintiff is required to “ insert a copy of the instrument sued on.” The 6th section of the act referred to, declares that “ in all suits instituted under the provisions of this act, the petition signed by the plaintiff or bis attorney, together with a true copy of the instrument sued on, and the assignments thereon, if any, shall be filed in the office of the Clerk of the Circuit Court.” In the case before us, the petition was signed by the attorney of the plaintiff, and contains a true copy of the instrument sued on, and filed in the office of the Clerk of the Circuit Court of Phillips county, as required by said 6th section. Under the present law regulating the form of proceeding in prosecuting actions, the declaration or petition is filed in the Clerk’s office before the writ is issued, and does not go out with the writ, but remains on the files of the court, subject to the inspection of the party. It is clear, in our opinion, that this is all the statute contemplates or requires, for it would be absurd to suppose that the Legislature required that two copies of the instrument sued on should be filed in the same office, and at the same time, nor is it in our opinion necessary. The proceedings are in strict conformity with the statute, and the Circuit Court rightly overruled the motion to dismiss. The judgment of the court below must therefore be affirmed with costs.

The same decision was made in the case of Wiiíiam M. McPherson against Henry L. Biscoe, assignee, fyc., in error to the same court.