Carroll v. Louisville N.R. Co.

Smith, C. J., delivered the opinion of the court. ^ The appellant sued the appellee for damages sustained by him because of a permanent injury which he claims was negligently inflicted on him by the servants of the appellee. A motion to require the appellant to give security for costs in the court below was met by a pauper’s affidavit in accordance with section 947, Code of 1906 (Hemingway’s 1927 Code, section 671). The appellee in support of its motion introduced evidence to the effect that it owed the appellant nothing on *190 account of his injury for the reason that it had paid him five hundred dollars in full settlement therefor. Whereupon an order was entered “that the plaintiff herein do furnish a bond in the sum of one hundred dollars as security for the costs of court.” The plaintiff having-failed to comply with this order, an order was entered at a succeeding- term of the court dismissing’ the suit. The five hundred dollars was paid the appellant by the appellee on April 2, 1927. The motion was heard on the 22d day of March, 1928, and it does not appear from the evidence that the appellant then had the money paid him by the appellee, or any part thereof. The evidence therefore was insufficient to warrant the court in holding that the appellant’s pauper’s affidavit was not true. But it is said by the appellee that the competency of this evidence cannot be passed on by us for the reason that the stenographer who reported it was not notified to transcribe his notes within the time required by law. Where it is claimed that a stenographer’s transcript of the evidence is not properly a part of the record, it should be challenged on that ground by a motion to strike it from the record so that the question can be determined before the case is submitted to this court on its merits, and such an objection to it will not be considered, in the absence of such a motion seasonably made. Reversed and remanded.