#### William W. Deatherage et al. v. Joseph R. Roach.

Practice—withdrawing papers from the files. A paper in a cause, when filed with the clerk, is a file of the court, and should not be withdrawn without leave of the court. But where a declaration, after being filed, was withdrawn from the files by the plaintiff’s counsel, but restored to the file before the time for the defendant to plead had expired, and it not appearing that the defendant had any defense of any kind to the note sued on, or had sustained any injury: Reid, a judgment in favor of the plaintiff would not be reversed for the refusal of the court to continue the cause for this irregularity.

Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Eplbr, Judge, presiding.

This was an action of assumpsit, by Joseph R. Roach against William W. Deatherage and others, upon a promissory note.

Messrs. Morrison, Whitlock & Lippincott, for the appellants.

Mr. Justice Breese

delivered the opinion of the Court:

This was assumpsit in the Morgan circuit court, resulting in a judgment for the plaintiff.

The only point made on this appeal is, the refusal of the court to continue the cause on defendant’s motion and affidavit, alleging that the declaration was not filed ten days before the first day of the term to which the writ was returnable.

By the bill of exceptions, it appears the declaration bore the file mark of the clerk as of the day the summons issued, which was October 27, 1874, more than ten days before the first day of the term. But it was alleged by the defendants, and admitted by the plaintiff, that on filing the declaration the plaintiff had withdrawn it from the file and taken it to his office for safe-keeping, saying he would produce it whenever it was wanted. His counsel gave as a reason for thus withdrawing the declaration, that papers in a suit between the same parties, one of the defendants being the clerk of the *322court, had been lost, and he had been put to great trouble and delay in supplying the loss.

It is known to be a common practice, but loose and improper, for the clerks to permit papers to be withdrawn by counsel after they are filed, and we would not desire to encourage such a practice. A paper, when filed with the clerk, is a file of the court, and should not be withdrawn without leave of the court. In many cases much injury might result from such practice.

In this case, the declaration was filed in time, and restored to the files before the time for pleading had expired, and it nowhere appears, nor is it alleged by appellants, they had any defense of any kind to the note. Nothing of the kind was pretended. They do not allege, by this withdrawal they were prevented from pleading, or that any injury of any kind has resulted to them.

Under such circumstances, appellee having an unquestioned claim to the amount of the note and damages, and appellants not having been prevented of making any defense they might have had, by this irregular act of appellee’s counsel, we therefore affirm the judgment.

Judgment affirmed.

Mr. Justice Sheldon

dissents.