Opinion
No. 30704.
October 2, 1933. Suggestion of Error Overruled November 13, 1933.
1. NEW TRIAL.
Where motion for new trial is not disposed of at one term, it is continued until next term and remains to be acted on by court at subsequent term.
2. APPEAL AND ERROR. Appeal taken within six months after rendition of order overruling new trial held not barred, though motion made at November term was not acted on until following July term ( Code 1930, sections 733, 734).
At the November, 1931, term, motion for new trial was filed and taken under advisement by the trial judge to be decided on or before January 4, 1932. There was no disposition of motion on that date, and at February, 1932, term, court was opened and adjourned under Code 1930, section 733. At July, 1932, term, court overruled motion for new trial.
3. APPEAL AND ERROR.
Notice to stenographer to transcribe notes of evidence, given prior to court's passing on and disposing of motion for new trial and conditioned on overruling of motion, held insufficient, and constituted no notice (Code 1930, section 725).
4. APPEAL AND ERROR.
Giving stenographer notice to transcribe notes of evidence is jurisdictional, and if not given notes cannot be considered (Code 1930, section 725).
5. APPEAL AND ERROR.
Stenographer's notes transcribed and filed must be stricken from record, where notice to transcribe was insufficient (Code 1930, section 725).
6. APPEAL AND ERROR. Where stenographer's notes of evidence were stricken from record, and there was no bill of exceptions, and appeal was from peremptory instruction, appeal must be dismissed ( Code 1930, section 725).
The appeal being from a peremptory instruction, it would be impossible to pass on propriety of giving such an instruction without stenographer's notes or bill of exceptions properly prepared.
APPEAL from Circuit Court of Copiah County.
W.S. Henley, of Hazlehurst, for appellee, on motion.
The case should be dismissed because record not filed within time required by law.
Miller, State Revenue Agent, v. Phipps et al., 119 So. 170; Turner v. Weaver, 89 So. 153, 126 Miss. 496.
The stenographer's notes should be stricken from the record. Notice to the stenographer in this instance was irregular.
If counsel for an aggrieved party desires the notes, he should give the stenographer notice unconditionally.
Section 725, Code of 1930.
The burden of determining when a copy of the notes is desired should be placed upon counsel and not upon stenographer, and a conditional notice, not effective at the time it is given, but contingent upon some future event, which may never happen is not a proper notice, as required by the statute.
The statute is very plain, and requires a notice to the reporter, "of the fact that a copy of the notes is desired." The statute does not permit a notice to the reporter that a copy of the notes may be desired some time in the future, if and when something else happens.
Drew v. Caston, 132 So. 736, 162 Miss. 851; State Highway Dept. v. Haines, 162 Miss. 216.
The transcript should also be stricken for the reason that the court reporter's notes have not been certified to.
Wilkinson v. Love, 111 So. 457.
The appeal is barred by statute of limitations.
Section 2323, Code of 1930.
In this case, the judgment was rendered on the 12th day of November, 1931. That term of court adjourned on December 1, 1931. The bond for the appeal was filed on November 4, 1932, and citation was issued and served on April 4, 1933, and record filed in supreme court on April 7, 1933.
Creswell v. Creswell, 140 So. 522.
In courts of law the date of the rendition of the judgment is the date "when the court signifies its assent to the sentence of the law as the result of proceedings in the case."
Clark v. Duke, 59 Miss. 575, 579; Simpson v. Boykin, 118 Miss. 701, 718, 79 So. 852; Rayl v. Thurman, 124 So. 432; Dickerson v. State, 117 So. 261.
In some jurisdictions the pendency of a motion to vacate and set aside or modify a judgment is held to suspend the operation of the judgment, so that it does not take final effect for the purpose of an appeal or writ of error until the motion has been disposed of. The general rule is however, that the pendency of a motion to vacate or modify a judgment or order does not relieve one from the statutory requirement to appeal within the prescribed time.
3 C.J. 1054; Claude v. Turner (Ark.), 15 S.W.2d 974; Moore v. Henderson (Ark.), 85 S.W. 237; Evans v. St. L.I.M. S.R. Co. (Ark.), 88 S.W. 994; Chatfield v. Jarratt (Ark.), 158 S.W. 146; Oxford Telephone Mfg. Co. v. Arkansas National Bank (Ark.), 204 S.W. 1140; Dubin v. Montgomery (Ark.), 221 S.W. 885, 223 S.W. 17; Wind v. Prudential Insurance Co. (Ark.), 36 S.W.2d 966; Sheahan v. Kansas City (Kan.), 169 P. 957; Smith v. Lemly (Kan.), 173 P. 275; Buzbee v. Morstorf (Kan.), 182 P. 644; Kamps v. Alexander (Md.), 104 A. 427; Crane v. Becker (Mich.), 225 N.W. 493; Kline v. Murray (Mont.), 257 P. 465; Tucker v. Davidson (Ore.), 156 P. 1037; Oxman v. Baker County (Ore.), 234 P. 799; Keyes v. Bakerville, 170 N.W. 140; Hayden v. City of Sisteon, 171 N.W. 88; McLean v. Merriman, 175 N.W. 878; Martin v. Higginbotham (Tex.), 29 S.W.2d 412; Lacey v. McClure (Tex.), 223 S.W. 872; Wood v. Hill (Tex.), 263 S.W. 631; Mid Texas Oil Co. v. Pan Handle Refining Co., 283 S.W. 572; Stribling v. Riggs (Tex.), 287 S.W. 1103; Minneapolis Threashing Co. v. Fox (Utah), 172 P. 699; Hogenson v. Prohl (Wisc.), 208 N.W. 867; Spencer v. Lowenstein (Wyo.), 207 P. 1098; W. Sheep Company v. Pine Dome Oil Co. (Wyo.), 228 P. 199.
J.M. Stevens, Jr., of Jackson, and M.S. McNeil, of Hazlehurst, for appellant, on motion.
Appeal will not be dismissed for failure to file record on return day in absence of prejudice to appellee.
J.J. Newman Lumber Co. v. Lucas, 108 Miss. 784, 67 So. 216; Lovette v. Harrison, 162 Miss. 814, 137 So. 471; Y. M.V.R.R. Co. v. McCarley, 106 Miss. 92, 63 So. 335.
The stenographer's notes should not be stricken and appeal should not be dismissed on account of the notice to stenographer.
Sections 728 and 3375, Code of 1930.
From section 728, Code of 1930, it will be seen that no stenographic transcript, when transcribed by the stenographer in pursuance to notice to do so will be stricken, unless incorrect in some material particular, and then only when not made part of that record as provided by law.
The stenographer was satisfied with the notice given in this case, and filed his notes in pursuance of the notice, even though he failed to observe all the statutory requirements imposed by law.
Since the notes were filed and were certified as being correct, and since appellee points out nothing incorrect in the notes themselves, the motion to strike should be overruled. It is not the duty of the stenographer to copy the exhibits.
Wilkinson v. Love, 111 So. 457; Geiselbreth v. Mississippi Power Light Co., 147 So. 874; Young v. Alexander, 122 Miss. 643, 84 So. 697; Ruffin v. Page, 109 Miss. 12, 67 So. 648.
The appeal is not barred because seasonably taken after judgment became appealable.
The order continuing the motion to be decided on or before January 4, 1932, had the effect of settling the motion for vacating hearing. January 4, 1932, was simply the day set for the hearing. The court's failure to pass upon the motion on or before January 4, 1932, did not amount to an automatic disposal of the motion either way. The vacation setting was not jurisdictional, except to give the court authority to act in vacation. In the event of the court's failure to act in vacation, the motion simply becomes an issue on the regular term docket of the court.
Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801.
There are no discontinuances known to the practice of the courts in this state.
O'Bannon v. Greenville Commercial Body, 159 Miss. 68, 132 So. 97.
In Union Motor Car Co. v. Cartledge, supra, the court inferentially overrules Scarborough v. Smith, 52 Miss. 517, by stating that a motion to set aside a judgment was continued from term to term without any special order of continuance.
Sledge v. Louisiana Highway Commission, 134 So. 704.
Counsel state that we have no decision on the question whether a motion for a new trial suspends the operation of section 2323, Code 1930. Counsel is in error. O'Bannon v. Greenville Commercial Body, supra, is decisive on this question, holding that a judgment is an exactly similar situation is not appealable. A clearer opinion could not be written. Section 2323 could not run against a judgment not appealable.
Young v. Alexander, 122 Miss. 643, 84 So. 697; 3 C.J., p. 465, sec. 282; United States v. Ellicott, 223 U.S. 524, 56 L.Ed. 535.
In this case there was a plea in bar on the ground that the appeal was not filed within the six months allowed by law for taking appeals from judgments. There is also a motion to strike the stenographer's notes on the ground, first, that no notice was given to the stenographer to transcribe his notes which complies with section 725, Code 1930, the notice being conditional and indefinite; and, second, that the transcribed notes have not been certified to as being correct by the judge, and have not been agreed upon by the parties, and contain material errors and omissions, in that all the exhibits have been omitted.
It appears that there was a trial on the issues between the parties at the November, 1931, term of the circuit court of Copiah county, at which term a motion for a new trial was filed and taken under advisement by the trial judge to be decided on or before January 4, 1932. There was no disposition of the motion for a new trial on that date, and at the February, 1932, term, the court was opened and adjourned under section 733, Code 1930. In other words, there was no business disposed of by the circuit court at the February term. At the July, 1932, term, the court overruled the motion for a new trial; the order overruling same being made on August 10, 1932. An appeal bond for two hundred dollars was filed on November 4, 1932, instead of for five hundred dollars as required by law, but a bond for five hundred dollars is tendered in this proceeding here which has been approved by the clerk of the circuit court.
Appellee contends, in the plea in bar, that the judgment rendered at the November, 1931, term of the circuit court became final when the trial judge failed to act upon it at the time set therefor in vacation; and that, if not correct in this position, it was overruled by operation of law at the February, 1932, term of the circuit court, and that, inasmuch as the appeal was not taken within six months after the end of this term of court, it became barred.
Counsel for appellee rely upon the case of Scarborough v. Smith, 52 Miss. 517, decided under section 534, Code of 1871, and which is different from section 734, Code of 1930.
We have since held that, where a motion for a new trial is not disposed of at one term of court, it is continued until the next term and remains to be acted upon by the court at a subsequent term. O'Bannon v. Greenville Commercial Body Company, 159 Miss. 68, 132 So. 87, and Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801.
We therefore hold that the appeal was not barred at the time it was taken in this case, having been taken within six months after the rendition of the court's order overruling the motion for a new trial.
We are of the opinion, however, that the notice to the stenographer to transcribe his notes of the evidence given in this case was insufficient and constitutes no notice to the stenographer to transcribe his notes; it having been given prior to the court's passing upon and disposing of the motion for a new trial. The letter to the stenographer reads as follows:
"December 2, 1931.
"Mr. M.A. Toney, Hazlehurst, Miss.
"Dear Sir: RE: Mayflower Mills v. A D Breeland?
"You will please transcribe the stenographic notes taken by you at the trial of the above styled case at the November term thereof, if, and when the circuit judge overrules the motion for a new trial filed in the case, as an appeal is desired to be taken to the Supreme Court of the State of Mississippi.
"Yours very truly,
"M.S. McNEIL, Atty. for plaintiff."
The giving of notice to a stenographer to transcribe his notes of the evidence is jurisdictional, and, if not given, the notes cannot be considered. By section 725, Code 1930, it is provided that: "In all cases in which the trial is noted by the official court reporter, any person desiring to appeal the case shall notify the court reporter in writing within ten days after the adjournment of court of the fact that a copy of the notes is desired. The notice must be handed to the court reporter personally, or mailed to him at his usual place of abode. In either case the attorney making the request shall file with the clerk of the court a copy of the notice, with a statement as to how the notice was served. Upon receipt of such notice it shall be the duty of the court reporter to immediately acknowledge receipt thereof, and to transcribe and file his notes within sixty days thereafter."
In Young v. Alexander, 122 Miss. 643, 84 So. 697, it was held that notice to the stenographer to transcribe his notes may be given ten days after ruling on motion for a new trial.
In Tullos v. Board of Sup'rs of Simpson County, 124 Miss. 121, 86 So. 358, it was held that in cause taken under advisement notice to stenographer must be given within ten days after vacation decree rendered and placed on minutes.
The notice above quoted in the case at bar was given prior to action upon the motion for a new trial and was conditioned upon "if and when" said motion should be afterwards overruled. To uphold a notice of this kind would be to require the court reporter to keep track of all the court's orders, and this would be manifestly unsound and unfair to the court reporter. When he receives notice according to the statute, it is his duty to transcribe his notes within sixty days, and if unable to do so within that time, the circuit judge may extend the time for thirty days additional, and if the stenographer does not transcribe his notes within the time thus allowed, then counsel desiring an appeal may prepare and file a bill of exceptions according to the old practice.
However, the appellee is entitled to have the statute complied with in giving notice, so that the stenographer's notes may be used instead of a bill of exceptions under the old practice.
There was no extension of time allowed in the case at bar, and there was no bill of exceptions prepared by counsel within the sixty days after failure of the stenographer to transcribe his notes. The stenographer was not legally called upon or notice given him to transcribe his notes, and no litigant acquired any right in such notes as were subsequently transcribed by the stenographer and filed in April following the appeal in November. Therefore, the provision that if the notes are filed, and the notice has been given, they shall not be stricken out, unless incorrect, does not apply. In legal effect, the notes are not officially the notes of the court reporter, because he was given no legal notice, and the giving of this notice is jurisdictional.
It follows, therefore, that the stenographer's notes transcribed and filed must be stricken from the record. As stated above, the appeal is from a peremptory instruction, and it would be impossible to pass upon the propriety of giving a peremptory instruction without the stenographer's notes, or a bill of exceptions properly prepared.
The appeal was taken on November 4, 1932, and was returnable on the first Monday of January, 1933. No record or bill of exceptions was filed on that date, nor was any filed on the first Monday in March, 1933, the next return day. There is now no legal record which we could look to in order to determine the propriety of the court below in giving the peremptory instruction; consequently, the appeal must be dismissed.
Stenographer's notes stricken, and appeal dismissed.