Opinion
No. 32902.
November 22, 1937. Suggestion of Error Overruled February 28, 1938.
1. APPEAL AND ERROR. Equity.
A master appointed with power to hear evidence and employ stenographer to take evidence may incorporate transcript of evidence as part of his report to the court, and, when that is done, the transcript becomes part of record for purpose of appeal.
2. EQUITY.
A master who has refused to incorporate, as part of his report, transcript of evidence taken by stenographer, may, on exceptions to report, be required to amend it so as to incorporate transcribed evidence therein.
3. APPEAL AND ERROR.
The transcript of evidence taken before a master becomes part of record only when master incorporates it as part of his report to court.
4. APPEAL AND ERROR.
Where master did not sign amendment to his report purporting to incorporate stenographer's transcript of evidence taken before him, transcript did not become a part of record, and, in absence of compliance with statute relating to making transcript a part of record, transcript could not be considered by reviewing court on appeal (Code 1930, sections 724-727).
5. APPEAL AND ERROR.
Where stenographer's transcript of evidence taken before a master had not become a part of master's report, because of his failure to sign amendment to report purporting to incorporate transcript, transcribed notes would not be considered on appeal on theory that they should be treated as depositions, since, in absence of master's signature to amendment, transcript was in no way identified as being the evidence before chancellor on hearing.
6. EQUITY.
The transcribed notes of evidence heard by master may be made a part of his report at time of filing thereof, or report may be amended by filing transcribed notes within reasonable time on exceptions to report before court in term time or chancellor in vacation.
7. APPEAL AND ERROR.
Where transcribed notes of evidence heard by master were not properly part of record on appeal because of master's failure to sign amended report purporting to incorporate them, notes were stricken from record with leave to file corrected transcript, if it could be shown that amended report on file in clerk's office had actually been signed.
8. APPEAL AND ERROR.
The court rule relating to sending of original papers to Supreme Court does not authorize trial court generally to send up all documentary exhibits to Supreme Court (Rules of the Supreme Court, rule 28).
9. APPEAL AND ERROR.
Original exhibits should be sent to Supreme Court only when an inspection of them instead of copies thereof would aid court in determining matter before it (Rules of the Supreme Court, rule 28).
10. APPEAL AND ERROR.
Where there appeared to be no reason why original exhibits sent to Supreme Court by order of trial court could not have been copied in record, such exhibits were stricken from record and returned to clerk of lower court (Rules of the Supreme Court, rule 28).
11. APPEAL AND ERROR.
The signer of an appeal bond cannot subsequently limit his liability, or release himself from obligations imposed, by stating that he desires to be released from obligations and will be responsible only for costs accruing to that date.
12. APPEAL AND ERROR.
That surety on appeal bond wrote clerk stating that he signed bond while sick, that he desired to be released from obligations thereon, and that he would be responsible only for costs accruing to that date, did not necessitate filing of an additional appeal bond, since surety's liability was in no manner limited thereby.
APPEAL from the chancery court of Copiah county. HON. V.J. STRICKER, Chancellor.
W.S. Henley and Webster Millsaps, both of Hazlehurst, for appellee on motion.
No effort was made to comply with the provisions of Sections 724 to 726 inclusive providing for the making of the stenographic notes a part of the record on appeal.
In the case of Mayflower Mills v. Breland, 149 So. 787, the Supreme Court of Mississippi held that a notice to the stenographer to transcribe the notes of evidence given prior to the court passing on and disposing of a motion for a new trial was ineffectual and constituted no notice.
No bill of exceptions was taken. The appellant having failed to perfect his record on appeal and make the stenographic notes a part of the record on appeal in the manner provided by the statute under the chapter on court reporting, the only other way that we know that he could make the transcript of the evidence a part of the record on appeal would be to incorporate it in a bill of exceptions to the decree of the court below, and have the judge settle the bill of exceptions which would include the approval of the transcript of the stenographic notes of the evidence.
The exceptions filed do not contain any statement of the evidence, and furnishes no basis for an inclusion of the transcript of the evidence in the record on appeal to this court.
The transcript of the evidence was not made a part of the record in the court below by either the master or the chancellor.
Section 446, Code of 1930.
The purported amendment to the master's report is ineffectual.
The master's determination of the matter referred to him constituted a valid adjudication of the same, and his report which he had made therein could not be set aside, vacated, or modified by him, after it had been entered any more than the Chancery Court below could enter a decree amending its judgment while this case was on appeal to the Supreme Court.
Beard v. McLain, 78 So. 184; Adams v. Evans, 19 So. 834; Evans v. King-Peoples Auto Co., 99 So. 758.
An examination of the transcript which appears on appeal discloses that it has never been marked filed by the clerk in the court below. Said transcript should be stricken because it is incomplete.
Benjamin v. Virginia Carolina Chemical Co., 87 So. 895; Planters Oil Mill v. Y. M.V.R.R. Co., 119 So. 168, 117 So. 242.
The original exhibits are not properly before the Supreme Court.
Rule 28 of the Supreme Court; Planters Oil Mill v. Y. M.V.R.R. Co., 119 So. 169.
We submit that the court below was without jurisdiction to order the original records considered by the Supreme Court in lieu of copies without an adjudication by the court below that it was necessary or proper that the Supreme Court should consider the originals.
In view of the irregularity as to the oath of the sureties which was not taken before the clerk, but before a notary, and the fact that Mr. Cato appears to be repudiating the conditions under which he signed the bond, we submit that a new bond should be required on which there is at least one good surety.
L.F. Easterling, of Jackson, for appellants on motion.
Counsel for the appellees takes the position, as we understand the motion and brief thereunder, that the transcript of the evidence taken before the master should be stricken because the record does not show notice was given to the stenographer, and because the amendment to the master's report reporting the evidence to the court does not appear in the record to have been signed by the master. It seems obvious that, inasmuch as the master is required to report the evidence upon which he made his findings, when the report is filed with the court the evidence taken before the master and certified by him to the court becomes in the nature of depositions. It certainly seems that it would be requiring a futile thing, after the testimony had been transcribed and used in the brief and argument before the master and the court, and the court had acted thereon, to require notice to be given to do that which had already been done.
Griffith's Chancery Practice, sections 603-607; Robertson v. Nicholson, 120 So. 822, 153 Miss. 545; Cooper v. Martin, 102 So. 851.
The court will observe from the exhibits to the affidavit filed in this cause that no objections were raised by counsel for appellees in the court below as to the correctness of the evidence, and that counsel for appellees were advised of every step in the matter. No attention was brought to the court below or to counsel of the fact, if such be a fact, that Judge Cox did not sign the supplemental report. Had this matter been presented, it could and would have been cured. It was evidently an oversight. Possibly the clerk merely copied a copy of the supplemental report, instead of the original. We do not know. The filing of this motion is the first time we learned that Mr. Cox did not actually sign the supplemental report, if that be a fact. From the affidavit of the attorney for the appellants, it will appear that the entire record was brought to Jackson for argument and presentation to Judge Stricker on exceptions to the master's report. It therefore can hardly be questioned that Judge Stricker, in passing on the report, passed on the entire report and the evidence in the case.
Counsel also states that the transcript of evidence does not appear to have been filed. Our position is that under the supplemental report of the master it was made a part of the record, and the report of the master and the supplemental report are shown to have been filed by the record.
Railroad Co. v. Chambers, 103 Miss. 400; Brown v. Sutton, 121 So. 835, 158 Miss. 78.
In my entire practice at the bar I cannot recall a single case where any objection was ever raised to the master reporting the evidence upon which he based his decision. I can recall no case where any exception was ever made to a record for incorporating in the record the master's report, including the evidence. That in Mississippi the practice has ever been that the master send up the evidence upon which he makes his findings of law and fact cannot be better proved than by reference to Judge Griffith's splendid work on "Chancery Practice in Mississippi," sec. 604.
21 C.J. 618, note 87; Bell v. Gordon, 55 Miss. 50.
In any case referred to a master in a court of equity the master may either employ a stenographer or take the testimony himself. The testimony so taken and reported to the court becomes a part of the record, as it is necessary under the practice to make a finding of the facts; and in case of objection based on such finding the evidence itself is a part of the report of the master and a part of the record in the case.
Adams v. Fry, 29 Fla. 318, 10 So. 559; 4 C.J., page 381, footnote 60 (c), page 383, page 187, footnote 67 (b), pages 156 and 157, footnote 37 (a); Reams v. McHargue, 111 Ky. 163, 63 S.W. 437, 23 Ky. L. 540; Stewart v. Mathews, 19 Fla. 752; Harrah v. State, 38 Ind. A. 495, 76 N.E. 443, 77 N.E. 747; Duckworth v. Duckworth, 144 N.C. 620, 57 S.E. 396; Midland R. Co. v. Trissal, 30 Ind. A. 77, 65 N.E. 543.
From the affidavit of the attorney for appellants, it will be seen that request was made on Mr. W.H. Cox, the master, to send up all the evidence in the case. Counsel for appellees was advised of this fact. The master made no objection thereto and amended his report, and the record shows that the original and amended reports were filed at the same time.
We take the position that the report of the master with the exceptions and the amended report, as shown by the record, were filed at the same time, and that under the general practice it was the duty of the master to return the evidence in order that the court might determine the correctness vel non of his findings of fact and of law.
Appellees cannot go into the trial before the chancellor, take their chances, and then object that the master had not signed this report. This could and would have been remedied, if this had been brought to the attention of the court.
It is contended by counsel that the court had no power to authorize the sending up of the original exhibits. As stated in my affidavit in this cause, this order to be presented to Judge Stricker was prepared by the writer hereof and Mr. Millsaps, and the writer understood that it was agreed that these original exhibits might be sent up.
3 C.J. 872, footnote 17 (f).
We respectfully call the court's attention to the fact that the decree appointing the master expressly authorized the master to take the evidence in this cause and to receive the evidence on the issues therein, and to submit a report of his findings and recommendations to the court. And the cause was set for hearing on the master's report in vacation.
About the only important exhibit sent up under the order of the chancellor was the bank record showing the statement of Spitchley's account, which was considered by the master in rendering his report and by the chancellor in his decision of the case. If, for any reason, this court should hold that this exhibit, or such other exhibits above mentioned as were not already copied in the record were not properly sent up, then appellants would request the court to allow them to have the same copied and certified back to this court by the chancery clerk. It is our contention on this point that these original documents, although permitted to be sent up by the court, were really sent up by agreement of counsel.
We call the court's attention to the further fact that this appeal was properly prosecuted within the time allowed by law, it contains all of the pleadings, evidence and all papers necessary to a decision of the case, and it was properly certified to by the Chancery Clerk, as required by law.
In this case appellees, Covington et al., moved to strike the stenographer's notes of the evidence taken before a master in chancery, also to strike certain original exhibits sent up to this court by the clerk by virtue of an order of the chancellor, and to require an additional appeal bond.
The motion to strike the stenographer's notes is based upon the facts, as shown by the record, that no notice was given to the stenographer to transcribe her notes of the evidence taken in the cause, and that the notes taken by the stenographer were not filed as required by section 726, Code 1930, in fact, that section was ignored; that the transcript is incompetent because of the omission of certain exhibits therefrom, and that the said transcript was never made a part of the record as a part of the report of the master as originally filed, and that the attempt to amend the report by the master, by making the transcript a part thereof subsequent to the original report, was null and void, and that the master never signed the amended report so as to incorporate the transcript of the evidence therein and make it a part of said report.
1. The record reveals that the chancery court appointed W.H. Cox as the master to determine the issues and state an account between the parties, and by the decree appointing the master the latter was authorized to take evidence and use a stenographer for that purpose. The master heard the evidence which was taken by a stenographer and later transcribed, and the stenographer certified that she had correctly transcribed her notes. On August 27, 1936, the master made his report to the court, and on September 3, 1936, overruled the appellant's exceptions to his report. There appears in the record an order filed September 10, 1936, styled "Amendment to Master's Report," in which it is recited that the master "amends his report filed on September 10, 1936, in the following particulars, to-wit: That said report of said Master stated that Mrs. Bessie Nelson was employed as court reporter to take the evidence at the trial, but said report did not have attached to it said evidence as transcribed by said stenographer, the same not having been fully transcribed at that time. Your Special Master desires to file the transcript of the evidence taken and certified to by Mrs. Bessie Nelson as a part of this report.
"Respectfully submitted.
"_____________ "Special Master."
As to the transcript of the stenographer's notes, it is apparent that the appellant did not comply with sections 724, 725, 726, and 727, Code 1930, with respect to making the transcript a part of the record. It is the precise contention of appellant that, the notes having been taken and transcribed by a stenographer, they automatically and necessarily became a part of the master's report, and that, if this is not true, then the unsigned paper, set forth above, amending the report, made the transcript of the evidence a part of said report and therefore a part of the record in the chancery court, that court having heard, considered, and approved the master's finding and entered a final decree in accordance therewith.
We are of the opinion that where a master is appointed, as in this case, with power to hear evidence and employ a stenographer to take the evidence heard before him orally, he may incorporate the transcript of the evidence as a part of his report to the court, and when this is done by the master the transcript of the evidence becomes a part of the record, and further notice or action on the part of an appellant is unnecessary. If the master should refuse to incorporate the transcript of the evidence in and as a part of his report, the parties to the litigation would not be remediless — it could be made to appear to the court, on exceptions to the report, that such transcript was necessary to a proper presentation of the case, and the master would be required to so amend his report as to incorporate the transcribed evidence therein. We are of the further opinion that the transcript of the evidence taken before a master becomes a part of the record only when the master incorporates it as a part of his report to the court — part of his findings and conclusions of law in the premises; that such transcript is not necessarily a part of his report, but he may make it a part thereof as readily as if he wrote out the evidence in his own handwriting. It appears from the record here that the master did not sign the amendment to the report, the line for his signature is blank. Therefore, the transcript of the evidence never, in fact, became a part of the master's report because the transcript is here without the requisite identification and authentication. The master must identify his report or amendment thereto by his signature, or signed certificate thereof.
There is no merit in the contention that this transcript is properly here as determined by this court in Cooper v. Martin, 102 So. 851, because in that case the notes were expressly approved and their correctness certified by the chancellor. The correspondence and evidence here does not establish an agreement, either express or implied, with reference to the transcribed notes becoming a part of the record in this cause. It simply discloses that appellant paid for and attempted to have the transcribed notes certified as a part of the master's report, and failed therein because of the lack of identification thereof by the master.
Appellant argues that the transcribed notes in this cause should be treated as depositions. This is wholly impracticable for depositions are certified to and filed in the court in a formal manner, and when offered in evidence the stenographer notes that a particular deposition is offered in evidence, and thereupon the clerk is authorized to copy it as a part of the record. The trouble here is that this transcript is in no manner identified as being the evidence before the chancellor on the hearing. If the master had signed the amended report, it would have been certified as a part thereof and thereupon necessarily have been a part of the record. We simply hold that the transcribed notes may be made a part of the master's report either at the time of filing his original report, or that the report may be amended by filing the transcribed notes within a reasonable time before the hearing, on exceptions to the report before the court in term time or the chancellor in vacation. In the case at bar, the master having failed to sign the amended report, there is no identification of the proposed transcribed notes as a part of the report and a part of the record in the cause. The transcribed notes of the evidence in this cause will be stricken from the record for the reason that they are not certified by the master, because of his failure to sign the amendment to the report. However, it may be that appellant will be able to have the clerk of the court below certify that this amended report on file in his office, referred to above, was in fact signed by the master at the time it was filed in that court, and appellant will be allowed fifteen days within which to have the clerk below, if he can, certify the record here in accordance with this opinion.
2. The court below made the following order in the final decree: "It is further ordered, adjudged and decreed that if this case should be appealed to the Supreme Court that the original exhibits introduced in evidence may be made a part of the record in lieu of copies thereof."
We unhesitatingly say that rule 28 of this court, found in 161 Miss., at page 907, does not authorize the trial court generally to send up all documentary exhibits to this court. No reason is assigned rendering it necessary and proper for the original papers to be sent to this court for its inspection, and such original exhibits should be sent to this court only when an inspection of them instead of the copies thereof would aid the court in determining a matter before it. In Planters' Oil Mill v. Yazoo M.V.R.R. Co., 119 So. 168, this court said that it was never the purpose of rule 28 to permit originals to be sent up in lieu of the transcribed copies thereof, but it was intended to give this court that aid that may be derived from an inspection and comparison of documents, maps, writings, etc., which would, in the opinion of the trial judge, enable this court to determine more correctly the true effect of the various papers, signatures, etc. It may be in an unusual case that a map or other document is so bulky as to be well-nigh incapable of being correctly copied by the clerk, or it may be that on account of unusual or prohibitive cost in transcribing same the original exhibit may be sent to this court, but the reason for the exercise of this discretion by the trial court should be set forth when it deems it necessary to make such an order. We stress this point for the benefit of trial courts which grant orders to send up masses of original exhibits which this court could not examine intelligently without the aid of an accountant or expert; such exhibits will not be permitted except in unusual cases, such as before pointed out. The clerk of this court is directed to return the exhibits in this case to the clerk of the lower court. From an examination of the exhibits, there appears to be no reason why they could not have been copied in the record. The power does not exist in a trial court to arbitrarily and without good reason therefor order original exhibits sent to this court in lieu of the record prepared by the clerk.
3. The appeal bond objected to as being insufficient in this case was signed by Gillis Cato, as surety, on July 26, 1937, and approved by the clerk on July 28, 1937. On August 13th Gillis Cato wrote the clerk that he signed the bond while he was sick, and that he desired to be released from the obligations of said bond, and served notice that he would only be responsible for the costs which had accrued to that date. After a party has signed an appeal bond he cannot in this manner limit his liability or release himself from the obligations imposed by law by the due execution and filing of the bond. There is no merit in the objection to the bond for this reason.
The motion to strike the stenographer's notes will be sustained, with leave to the appellant within fifteen days to file a corrected transcript in this cause, if he desires and can do so. The motion to strike from the record the original exhibits and to have them returned to the clerk of the court below is sustained. The objection to the appeal bond herein is overruled.
So ordered.