Counsel for movants point out that the affidavit of the clerk establishes that Mr. Bob Barber, attorney for defendants, has a "credit account" with the clerk; that the judgment fee due the clerk for filing the judgment of defendants was charged to the account of Mr. Barber; that he was notified September 26 of his indebtedness to the clerk for filing fees; and that on said date he paid the clerk $46.50 accumulated filing fees in which was included the $10 charged to his account for the filing of the judgment herein involved. With these facts before us, movants call to our attention the holding of this court in McGirk v. Seventy-Six Cattle Co., 38 Ariz. 354, 300 P. 181, in which case it was held that where the clerk of the superior court filed a transcript from the State Land Department pending determination as to whether or not filing fees should be charged, he thereby extended credit to appellant for such fee, and that the act or service (of filing) was as valid as if the fee had been paid at the time of the filing (citing section 1479, R.C.A. 1928, now section 34-122). The court squarely held that the extension of credit was equivalent to payment.

The excuse given for the failure to file was the reliance of defendant's counsel on the alleged promise of the clerk to file the general demurrer in time. While counsel knew as a matter of law that the clerk could not be compelled to enter an appearance or to file any pleading without the filing fee first being paid, he also knew that in case the latter did so enter an appearance or file any pleading defendant would not be in default, even though the fee had not been paid. McGirk v. Seventy-Six Cattle Co., 38 Ariz. 354, 300 P. 181. Such being the case, we think that, if the clerk made such a promise, counsel may be excused for relying on it. It is true the clerk denies making the promise, but the veracity of the two affiants was for the trial judge to determine, and by his action we must presume he found that the attorney told the truth.

PER CURIAM. The record in this case, except in the matter of the party appellant and slight details immaterial to the issue involved, is the same as in W.H. McGirk, Appellant, v. Seventy-Six Cattle Company, a Corporation, Appellee, ante, p. 354, 300 P. 181. Let the same order be entered in this as in the McGirk case.

PER CURIAM. The record in this case, except in the matter of the party appellant and slight details immaterial to the issue involved, is the same as in W.H. McGirk, Appellant, v. Seventy-Six Cattle Company, a Corporation, Appellee, ante, p. 354, 300 P. 181. Let the same order be entered in this as in the McGirk case.

It is true that our Supreme Court has treated as valid filings made without the payment of the required fee where those filings were accepted by the Clerk. See Sligh v. Watson, 67 Ariz. 95, 191 P.2d 724 (1948); McGirk v. Seventy-Six Cattle Co., 38 Ariz. 354, 300 P. 181 (1931). In both of those cases, however, the Court emphasized the statutory language now contained in § 12-301 B, which provides that the "[f]ailure to collect the fee shall not affect the validity of the act or service."