Opinion
No. 42699.
February 10, 1964.
1. Trial — dispute over title to strip of land — case properly transferred to Chancery Court.
Where title to strip of land was in dispute in action for wrongful cutting of trees, case was properly transferred from Circuit Court to Chancery Court.
2. Appeal — court reporter's notes stricken — evidence not to be considered.
Where court reporter's notes were stricken because appellant failed to give timely notice to court reporter to transcribe her notes, assigned errors relating to testimony and evidence could not be considered.
3. Appeal — Chancellor's findings — not to be disturbed unless manifestly wrong.
Where findings of Chancellor were not manifestly wrong, they would not be disturbed on review.
Headnotes as approved by Brady, J.
ON MOTIONJune 3, 1963 154 So.2d 109
4. Appeal — striking stenographer's notes as not requiring a dismissal.
Striking of stenographer's notes does not require dismissal of appeal.
5. Appeal — record imports verity.
Appeal record or record of lower court imports verity.
6. Appeal — failure to give notice to stenographer — notes stricken.
Where record on appeal failed to show any effort to give notice to stenographer within ten-day period prescribed by statute, stenographer's transcript would be stricken. Sec. 1640, Code 1942.
Headnotes as approved by Jones, J.
APPEAL from the Chancery Court of Franklin County; F.D. HEWITT, Chancellor.
Herring McCoy, Meadville, for appellants.
I. The decree as entered in this matter is vague and indefinite, and does not definitely establish the property line between lots six and seven of the W.A. Prather estate. This entire court action arose out of a dispute between the parties as to the exact location of said property line. In order for equity to be done, said line must be definitely established. Buckwalter Lumber Co. v. Wright, 159 Miss. 470, 132 So. 443; Haley v. Martin, 85 Miss. 698, 38 So. 99; Holcomb v. McClure, 211 Miss. 849, 52 So.2d 922; Johnstone v. Nause, 233 Miss. 584, 102 So.2d 889; O'Herrin v. Brooks, 67 Miss. 266, 6 So. 844.
II. The appellants proved by the preponderance of the evidence that the fence, as constructed by the appellee, was more than two chains east of the true boundary dividing lots six and seven of the W.A. Prather estate and that they were entitled to damages as prayed for in said pleadings and proven in said trial. Corley v. Colgin (La.), 121 So.2d 743; 8 Am. Jur., Boundaries, Secs. 2, 8.
III. The final decree is against the great weight of the testimony. Wroten v. Finn, 202 Miss. 361, 35 So.2d 534.
J. Gordon Roach, McComb, for appellee.
I. Where stenographic notes have been stricken from the record the appellate court must consider the cause solely upon the record of the pleadings and judgment of the lower court. American Creosote Works, Inc. v. Rose Brothers, 211 Miss. 173, 51 So.2d 220; Ashe v. Ballard, 223 Miss. 397, 78 So.2d 476; Ivy v. Robertson, 220 Miss. 364, 70 So.2d 862; Mississippi State Highway Dept. v. Meador, 184 Miss. 381, 185 So. 816, 186 So. 642; Ruiz v. Ruiz, 233 Miss. 192, 101 So.2d 533; Shaw v. Bula Cannon Shops, 205 Miss. 458, 38 So.2d 916; Wilson v. Wilson, 103 Miss. 585, 60 So. 652.
II. Chancellor's decree upon conflicting evidence conclusive on appeal unless manifestly wrong. Ascher v. Moyse, 101 Miss. 36, 57 So. 299; Bradley v. Howell, 161 Miss. 346, 133 So. 660; Chapman v. Federal Land Bank of New Orleans (Miss.), 185 So. 586; Cole v. Standard Life Insurance Co., 170 Miss. 330, 154 So. 353; Evans v. City of Jackson, 201 Miss. 14, 28 So.2d 249; Greenville Brick Improvement Co. v. Hyatt Smith Manufacturing Co. (Miss.), 11 So. 471; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523; Magnolia Textiles v. Gillis, 88 Miss. 585, 41 So. 6; Partee v. Bedford, 51 Miss. 84.
III. The decree, as rendered, followed the theory and allegations of the pleadings and the prayer of the answer and cross-bill. Conner v. Philo, 117 App. Div. 349, 102 N.Y.S. 427; Holmes v. Ford, 179 Miss. 673, 178 So. 524; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; Sec. 1930, Code 1942.
IV. If error appears on the face of the decree, which is here denied, this Court cannot correct same but must dismiss the cause. Cole v. Miller, 32 Miss. 101; Gilleylen v. Martin, 73 Miss. 698, 19 So. 482; Hall v. Waddell, 78 Miss. 47, 27 So. 936, 28 So. 831; James v. Fisk, 17 Miss. 144; Ross v. Milner, 194 Miss. 497, 12 So.2d 917; Todd v. Todd, 197 Miss. 819, 20 So.2d 827; 30 Am. Jur., Judgments, Sec. 69 p. 212; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 635.
(Hn 1) The inception of this cause was a declaration filed in the Circuit Court of Franklin County to recover damages for the wrongful cutting of sixteen trees alleged to have been on land owned by appellant. Title to the strip of land involved being in dispute, the case was properly transferred to the Chancery Court of said county.
(Hn 2) Numerous pleadings were filed in the Chancery Court, issues were joined, and voluminous testimony introduced in this hard-fought case. A decree was entered in favor of appellee and he was taxed with costs. After an appeal was perfected, an order was entered by this Court striking the court reporter's notes because appellant had failed to give within the requisite time the statutory notice to the court reporter to transcribe her notes.
Therefore, this cause is before us only on the pleadings and the decree of said Chancery Court. The errors assigned which relate to the testimony and evidence cannot be considered for the reason there are no evidentiary matters before us for consideration. Miss. State Highway Dept. v. Meador, 184 Miss. 381, 185 So. 816; Ruiz v. Ruiz, 233 Miss. 192, 101 So.2d 533; Shaw v. Bula Cannon Shops, Inc., 205 Miss. 458, 38 So.2d 916; American Creosote Works, Inc. v. Rose Bros., Inc., 211 Miss. 173, 51 So.2d 220; Ivy v. Robertson, 220 Miss. 364, 70 So.2d 862, and authorities there cited; Ashe v. Ballard, 223 Miss. 397, 78 So.2d 476.
The issue properly before this Court is: Does the decree entered herein properly conform to and not exceed the limitations of the pleadings?
(Hn 3) A careful study of all the pleadings, and the issues joined therein, together with the decree which was entered by the chancellor in this cause, convinces us that there are no errors in the decree and no reversible errors of record in this cause. The decree is definite and correctly conforms to the pleadings and prayer of the appellee's answer and cross bill, therefore, this Court affirms the findings of the chancellor in the court below. This is in compliance with our long established rule of not disturbing the findings of a chancellor unless manifestly wrong. The abundance of cases on this point eliminates the necessity for the citation of any authority.
Affirmed.
Lee, C.J., and Ethridge, McElroy and Rodgers, JJ., concur.
ON MOTIONS
This case is before us on two motions. The first motion is to revive on account of the death of the appellee. This motion is uncontested and is sustained.
The second motion is to strike the stenographer's notes and dismiss the appeal because notice to the stenographer was not given within the time required by law. (Hn 4) The striking of the stenographer's notes does not require the dismissal of the appeal, and, therefore, the motion, insofar as requesting a dismissal of the appeal is concerned, is overruled.
As to the motion to strike the stenographer's transcript: Final decree herein was entered in term time on June 10, 1961, and the term adjourned on June 10, 1961. There was no attempt to give notice to the stenographer until June 27, 1961, when a notice was directed to him and filed in the office of the clerk on June 28.
Section 1640, Miss. Code of 1942, requires such notice to be given within ten days after the adjournment of court. A motion for a new trial seems to have been filed on June 28, 1961, and to have been overruled on the same day. Regardless of whether a motion for a new trial filed in vacation could be entertained, during the ten days immediately following the adjournment of court, there was nothing pending before the court and there was no attempt of any sort to give notice.
We are bound by what the records show us.
(Hn 5) The appeal record, or record of the lower court, imports verity. It is argued that the decree was not actually signed on June 10, and was not recorded on that date. However, this is simply argued in the brief and cannot prevail against the record itself.
(Hn 6) We have held under Sec. 1640, Miss. Code of 1942, it is necessary that such notice be given within ten days after the adjournment of court; otherwise the stenographer's notes will be stricken. We have also held that where an effort was made in good faith within the ten days to give notice, that the notes would not be stricken. Fishermen and Allied Workers, et al. v. Quaker Oats Co., Inc., 235 Miss. 401, 106 So.2d 144, 109 So.2d 321; Sasser v. Sasser, 148 So.2d 668.
As stated, the record here shows no effort was made to give any notice within the ten days, therefore, we can do nothing except sustain the motion to strike the stenographer's transcript.
Motion to revive sustained; motion to dismiss appeal overruled: motion to strike stenographer's notes sustained.
McGehee, C.J., and Gillespie, McElroy and Rodgers, JJ., concur.