Mutual Life Ins. v. Phinney

GILBERT, Circuit judge

(dissenting). The decisions of the supreme court, referred to in the opinion of the majority of the court, establish beyond question that it is the filing of the writ that removes the record from the inferior to the appellate court; but I am unable to concur in the view that it is essential to the filing of the writ that the indorsement of that fact be entered thereupon by the clerk.

At common law, the file was a thread or string or wire upon which writs and other papers in courts were fastened and filed for safekeeping and for ready reference. To file a paper meant to…