Opinion
No. 46327.
February 8, 1971.
Appeal from Jones County Circuit Court, Lunsford Casey, J.
Jon A. Swartzfager, Laurel, for appellant.
Gibbes, Graves, Mullins Bullock, Laurel, for appellee.
On Motion of Appellee to Strike Court Reporter's Notes
Appellee has filed a motion to strike the court reporter's notes. Code section 1640 requires that the person wishing to appeal shall notify the court reporter in writing within ten days after adjournment of court that a copy of the notes is desired, and provides that notice may be handed to the court reporter personally or mailed to him at his usual place of abode. Miss.Code 1942 Ann. § 1640 (Supp. 1968). Neither personal delivery nor mailing occurred within the ten day period.
Assuming that appellant's counsel tried but was unable to locate the court reporter on the tenth day, counsel nevertheless could have mailed the notice on that day and could have filed a copy of the notice that day with the circuit clerk. He did neither. Cf. Mississippi State Highway Comm'n v. Brown, 250 Miss. 773, 162 So.2d 508 (1964); Leonard v. Sullivan, 248 Miss. 442, 154 So.2d 109 (1963). Unless some type of writen notice is given or mailed to the court reporter to transcribe the notes within the time allowed by statute, they will be stricken from the record on appeal upon application of an adverse party. See Drew v. Caston, 162 Miss. 851, 132 So. 736 (1931). There is no evidence of any written notice seeking to comply with the statute on or before the tenth day. Accordingly, the motion to strike the court reporter's notes will be sustained.
Motion of appellee to strike court reporter's notes sustained.
All Justices concur.