Summary
In Redmond v. Hilliard, 190 Miss. 839, 199 So. 83, 200 So. 130 (1940), the notice to the court reporter was given prior to the entry on the minutes of the order overruling the motion for a new trial and prior to adjournment of court but after the judge had orally announced he would overrule the motion for a new trial.
Summary of this case from First National Bank of Vicksburg v. CutrerOpinion
No. 34375.
December 9, 1940.
APPEAL AND ERROR.
Where appellee filed motion to strike transcript of court reporter's notes from record, because court reporter had not been given notice by appellant to transcribe his notes but appellant filed motion for certiorari requiring clerk to send up docket entries including written notice to reporter, if appellant had actually had notice served on court reporter in accordance with statute, he was granted permission to file copy with circuit court and have it sent up (Code 1930, sec. 725, as amended by Laws 1936, chap. 236).
(In Banc. Feb. 10, 1941.) [200 So. 130. No. 34375.]1. APPEAL AND ERROR.
Motion to strike stenographer's transcript from record on ground that transcript did not appear to have been signed by trial judge, nor to have been agreed on by the parties, nor to have become part of record, was not required to be considered, where proper notice had been given to stenographer to transcribe notes of evidence, and motion did not contain allegation that transcript was incorrect in any particular (Code 1930, sec. 728).
2. APPEAL AND ERROR.
The giving of notice to reporter to transcribe his notes of evidence and not filing of copy thereof with clerk of trial court determines the duty of reporter to transcribe his notes (Code 1930, sec. 725, as amended by Laws 1936, chap. 236).
3. APPEAL AND ERROR.
Where appellee moved to strike stenographer's transcript from record on ground that record failed to disclose notice of appellant to stenographer to transcribe notes of evidence, but appellant in reply to the motion alleged that he actually served written notice on the stenographer, and the allegation was not denied by appellee, Supreme Court assumed that the allegation was true (Code 1930, sec. 725, as amended by Laws 1936, chap. 236).
4. APPEAL AND ERROR.
Notice to court reporter to transcribe notes of evidence must be given within ten days allowed by statute, without which notice transcript of evidence filed by court reporter is of no validity and must be stricken from the record (Code 1930, sec. 725, as amended by Laws 1936, chap. 236).
5. APPEAL AND ERROR.
Judgment finally disposing of case, prior to which no appeal to Supreme Court would lie, was judgment overruling motion for new trial.
6. APPEAL AND ERROR.
Appeal to Supreme Court would not lie prior to judgment finally disposing of case.
7. APPEAL AND ERROR.
Where judgment overruling motion for new trial was rendered on May 22, 1940, and appellee moved to strike stenographer's transcript from record on ground that record failed to disclose notice from appellant to stenographer to transcribe notes, but in reply appellant alleged that written notice to transcribe notes was given to stenographer on March 25, 1940, and that reason for service of notice on that date was that judge on that day overruled motion for new trial, appellant's allegations, not being denied by appellee, were accepted as true (Code 1930, sec. 725, as amended by Laws 1936, chap. 236).
8. APPEAL AND ERROR.
Where motion for new trial was overruled on May 22, 1940, but trial judge had announced on March 25, 1940, that he would overrule the motion, and written notice was given to stenographer on March 25, 1940, to transcribe notes of evidence, appellee's motion to strike stenographer's transcript from record on ground that record failed to disclose notice from appellant to stenographer to transcribe notes was properly overruled (Code 1930, sec. 725, as amended by Laws 1936, chap. 236).
9. APPEAL AND ERROR.
A plea in bar to appeal on ground that bond was filed after expiration of time within which appeal could be taken was without merit, where appeal bond was filed on day motion for new trial was overruled, since appeal would not lie until motion for new trial was overruled.
APPEAL from the circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.
G.Q. Whitfield and Chalmers Alexander, both of Jackson, for appellee on motion.
The record fails to disclose notice from appellant to the circuit court stenographer to transcribe notes of the evidence and should be stricken.
Jackson Opera House Co. v. Cox, 188 Miss. 237, 191 So. 665; Furr v. Brookhaven Creamery Co., 188 Miss. 1, 191 So. 684; Richmond v. Enochs, 109 Miss. 14, 69 So. 649; Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787.
The transcript does not appear to have been signed by the trial judge of the court below, nor to have been agreed on by the parties, nor to have become a part of the record as provided by statute. Neither any attorneys for the plaintiff nor for the defendant — not any counsel at all — are shown to have passed upon or approved or disapproved the transcript.
Wilkinson v. Love, 149 Miss. 517, 111 So. 457, 458.
The final judgment, on jury verdict, was entered on the circuit court minutes, Friday, October 14, 1938. No application for appeal is shown to have been made in open court at time of judgment. Bond for appeal was filed in the circuit court May 21, 1940 — over a year and a half after judgment. Appeal is too late.
Code 1930, sec. 2323.
Stirling Stirling, of Jackson, for appellant on motion.
Appellant's right to obtain a review of any ruling made in the trial court shall not depend in any wise upon his having filed in such court a motion for a new trial, and if one has been filed upon the disposition thereof.
Miss. Supreme Court Rules, No. 6, Subsection 3.
A summons is not necessary where the appeal is perfected in term time.
Sec. 55, Code 1930.
Inspection under Section 726 of the Code is merely a privilege accorded to attorneys, and if they do not care to exercise it their failure to do so cannot be complained of.
If the transcribed notes are correct they will not be stricken, and appellee does not complain that they are not correct.
Sec. 728, Code 1930; Geiselbreath v. Miss. P. L. Co., 166 Miss. 749, 147 So. 874; Warren v. State, 165 Miss. 783, 144 So. 698; Evans v. Ham, 98 Miss. 731, 54 So. 250.
No appeal will be allowed to fail because of any defect in the application to record appeal or because of the failure of any officer to comply with the requirements of the law in reference to appeal.
Sec. 3375, Code 1930.
Appellant suggests a diminution of the record in this case and moves the court for a certiorari to correct the record and bring up to this court certified copy of the general docket in the circuit court, covering interest pertaining to this case, to show the date filed of the numerous pleadings including the declaration, motion for new trial, order overruling motion, prayer for appeal, notice to reporter to transcribe notes, and bond.
S.D. Redmond, of Jackson, for appellant on motion.
Appellant was told on March 25, 1940 that appellant's motion for a new trial had that day been overruled, and being desirous of an appeal, appellant immediately prepared a notice to the Hon. R.S. Streit, court stenographer, and asked the Honorable Mr. Streit to transcribe his notes in said cause and send them up.
It appears that while said motion for a new trial was overruled on said March 25, 1940, that the matter was overlooked and that an order was not entered until May 22, 1940. But appellant having been told that the said motion was overruled on March 25, 1940, he went ahead and prepared his bond and filed it, and he does not feel that the bond being filed May 21, 1940, and the order dated May 22, 1940, in a case announced as overruled March 25, 1940, makes any material difference. There is certainly no cause for complaint on the part of appellee.
Argued orally by J.B. Stirling, for appellant, and by G.Q. Whitfield and H. Chalmers Alexander, for appellee.
Appellee filed a motion to strike the transcript of the court reporter's notes from the record for the reason that the court reporter was not given notice by the appellant to transcribe his notes, as required by Section 725, as amended by Chapter 236 of the Laws of 1936. There were other grounds for the motion, but it is not alleged in the motion that the transcript of the notes is in any manner incorrect.
Redmond replied at length to the suggestion of error, and filed a carbon copy of a letter to the court reporter, dated March 25, 1940, requesting said court reporter to transcribe his notes. Relative thereto, he said: "Appellant was told on March 25th, 1940, by Hon. J.H. Howie, who was then representing appellant in this cause, that appellant's motion for a new trial had that day been overruled, and being desirous of an appeal, appellant immediately prepared a notice to the Hon. R.S. Streit, Court Reporter, and asked the Honorable Mr. Streit to transcribe his notes in said cause and send them up, a copy of said notice is attached hereunto marked `Exhibit A' to this answer and asked to be considered as much a part hereof as if copied herein." Redmond answered further that he sent notice to the clerk to prepare the record and to send it to the Supreme Court; also, that the docket (referring to the circuit court docket) shows notice to both stenographer and clerk under date of May 22, 1940. The record shows that an order was entered by the court on May 22, 1940, overruling appellant's motion for a new trial.
In connection with this motion, appellant filed a separate motion for certiorari, requiring the clerk to send up the docket entries as to the filing of certain papers pertinent to this motion, and a certificate of his docket entries relative thereto, which includes the written notice to the stenographer. Appellant does not allege how or when or if ever he served the notice on the court reporter. If, however, he has actually had the notice served on the court reporter in accordance with the statute, he may file a copy with the circuit clerk and have it sent up.
The motion for certiorari will be granted as prayed for; and the motion to strike the transcript of the record will be passed until the circuit clerk has made his return in answer to the writ of certiorari herein granted. The certificates and documents prayed to be sent up must be filed in this Court within ten days from this date.
This is a motion to strike the stenographer's transcript from the record, the grounds thereof being:
(1) The record fails to disclose notice from appellant to the Circuit Court stenographer to transcribe notes (transcript) of the evidence.
(2) The transcript does not appear to have been signed by the trial judge of the court below, nor to have been agreed on by the parties, nor to have become a part of the record as provided by statute. Neither any attorneys for the plaintiff nor for the defendant — not any counsel at all — are shown to have passed upon or approved or disapproved the transcript.
(3) The appeal to this court was barred by the Statute of Limitations when the bond therefor was filed.
If there is no merit in the first of these two grounds, the second disappears, since the motion contains no allegation that the transcript is incorrect in any material particular. Section 728, Code of 1930.
A final judgment herein was rendered in the court below at its September 1938 term. A motion then made by the appellant for a new trial was continued for disposition by the trial judge in vacation. No vacation order was made, and the motion was not overruled until May 22, 1940, during the regular May term of the court. The court reporter filed a transcript of the evidence within an extension of time allowed him by the court in which so to do. No notice to the reporter to transcribe his notes was filed with the clerk of the court below as required by Section 725, Code of 1930, now Chapter 236, Laws of 1936. The appellant, however, says in his reply to this motion that a written notice so to do was given the stenographer on March 25, 1940, a copy thereof being attached to the answer. If this is true, the notice can yet be filed with the clerk of the court below. The giving of the notice and not the filing of a copy thereof with the clerk of the trial court determines the duty of the reporter to transcribe his notes of evidence, and since the appellant's allegation that he actually served the written notice on the reporter is not denied by counsel for the appellee, we will assume that it is true.
Section 725, Code of 1930, Chapter 236, Laws of 1936, require a notice to be given a court reporter to transcribe his notes of the evidence "in writing within ten days after the adjournment of court." This notice must be given and within the ten days allowed therefor, without which the transcript of the evidence filed by the court reporter is of no validity and must be stricken from the record. Richmond v. Enochs, 109 Miss. 14, 67 So. 649; Lee Line Steamers v. American Export Co., 109 Miss. 524, 68 So. 771; Dunn v. Green, 124 Miss. 602, 86 So. 852; White et al. v. Board of Supervisors, 121 Miss. 434, 83 So. 611; Armour Co. v. Strahan, 130 Miss. 109, 93 So. 364; Tullos et al. v. Board of Supervisors, 124 Miss. 121, 86 So. 358; Jackson Opera House v. Cox, 188 Miss. 237, 191 So. 665; Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787; Rees v. Rees, 188 Miss. 256, 193 So. 334.
The judgment finally disposing of this case, prior to which no appeal to this court would lie, was the judgment overruling the motion for a new trial rendered at the May, 1940, term of the court below. Mayflower Mills v. Breeland, supra. This notice to the reporter was served on him, not only prior to the adjournment of that term of the court, but prior to the entry on the minutes of the judgment overruling the motion for a new trial. The reason given by the appellant for serving the notice on March 25, 1940, is that the judge of the court below on that day overruled the motion for a new trial, meaning, of course, that the judge on that day announced that he would overrule the motion. The allegation to this effect in the appellant's answer to the appellee's motion not being denied by the appellee will be accepted as true. In Clark v. Merchants' Manufacturers' Bank, 128 Miss. 206, 207, 90 So. 844, the chancellor announced his decision in the case orally, but the decree therein was not entered on the minutes until four days thereafter. On the day the decision was orally announced, the losing party served a notice on the reporter to file a transcript of the evidence, which the reporter did. On a motion to strike the transcript from the record, this court held that the notice could be given before the adjournment of the court, and that the notice given after the case was orally decided but before the entry of the decree on the minutes was valid. That case will control here unless in conflict with the later case of Mayflower Mills v. Breeland, supra. In that case, the facts were that at the November 1931 term of a circuit court, a motion for a new trial was taken under advisement for decision in vacation. It was not disposed of in vacation and not until the July 1932 term, at which it was overruled. On December 2, 1931, counsel for the party against whom the judgment had been rendered, and who filed the motion for a new trial, notified the court reporter in writing to transcribe and file a copy of his notes of the evidence "if, and when the circuit judge overrules the motion for a new trial filed in the case." The court held that the notice was ineffective for the reason that it "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." [ 168 Miss. 207, 149 So. 788.] As the notice was served on the court reporter before the judgment overruling the motion for a new trial was rendered without any announcement by the trial judge that he had overruled or would overrule the motion, that case is not in conflict with Clark v. Merchants' Manufacturers' Bank, supra. Consequently, the motion to strike the reporter's transcript from the record must be overruled.
The third reason given is really a plea in bar to the appeal on the ground that the bond therefor was filed after the expiration of the time within which an appeal can be taken. The appeal did not lie until the motion for a new trial was overruled and the appeal bond was filed on the day the motion was overruled. Mayflower Mills v. Breeland, supra.
The request of the appellant for leave to file an assignment of error will be granted.
So ordered.