Opinion
No. 36892.
May 24, 1948.
APPEAL AND ERROR.
Notice to court reporter to transcribe testimony, required by statute to be given within ten days after adjournment of court, is jurisdictional, and if not given, Supreme Court is without power to require transcribing of the notes (Code 1942, sec. 1640).
APPEAL from the Circuit Court of Jones County.
Poole London, of Jackson, for appellant.
The petition to require the record to be transcribed and filed should be sustained.
Young v. Alexander, 122 Miss. 643, 84 So. 697; Redmond v. Hilliard (Miss.), 200 So. 130; Cooper v. Martin (Miss.), 102 So. 851; Humphrey et al. v. Crocow Hardware Co., 163 Miss. 490, 140 So. 690; Walden v. State, 127 Miss. 486, 90 So. 177; Tumey v. State of Ohio, 277 U.S. 61, 48 S.Ct. 439; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265; Code of 1942, Secs. 1146, 1175, 1640, 1957, 1958.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The giving of notice as required by statute to the court reporter to transcribe notes of evidence is jurisdictional and if not given notes cannot be considered.
Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787.
This Court is without power to issue an order to the circuit court stenographer to transcribe the notes taken in said trial.
Ocean Springs Bank et al. v. Frederick, 145 Miss. 553, 110 So. 366; State v. White, 153 Miss. 697, 119 So. 807.
Notwithstanding the fact that timely notice was not given to the court stenographer to transcribe the notes taken in the above styled cause, the State of Mississippi, appellee herein, by its Attorney General, Greek L. Rice, hereby agrees that said notes may be transcribed and filed and made a part of the record in this cause the same as if all the requirements of law had been complied with.
Appellant has filed motion for an order requiring the Circuit Court reporter to transcribe testimony taken in the trial of this cause. The motion contains certain details of explanation made by counsel for the appellant as to why notice was not given to the reporter within ten days after the adjournment of the Court as required by Section 1640. Code of 1942. The allegations of the petition are contradicted in some details by the affidavit of the trial judge which is filed as part of the response of the Attorney General to appellant's motion.
We do not find it necessary to resolve this factual conflict and may look only to the situation as presented by the record. What occurred is therefore more controlling than why it did so occur. The giving of the notice required by the cited statute is jurisdictional. Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787. We are without power to require by our order a transcribing of the notes by the Circuit Court reporter since the notice was not given until after the expiration of the statutory period. Ocean Springs Bank et al. v. Frederick, 145 Miss. 553, 110 So. 366.
It is noted with interest that the Attorney General, in his reply to the motion, has stated as follows: "The State of Mississippi, appellee herein, by its Attorney General Greek L. Rice, hereby agrees that said notes may be transcribed and filed and made a part of the record in this cause the same as if all the requirements of law had been compiled with." We make no comment upon this concession, nor is it any part of the foundation for our conclusion that the motion should be overruled.
Overruled.