Furr v. Brookhaven Creamery Co.

On Motion to Strike. McGowen, J., delivered the opinion of the court on motion to strike. On the appeal of Furr and others, as heirs at law of Albert Furr, the appellee, the Brookhaven Creamery Company, moves to strike the stenographer’s notes on file herein from the record. The undisputed facts pertinent to this motion are as follows: A. L. Furr and others, as next of kin and heirs at law of A. E. Furr, brought an action for damages against the Brookhaven Creamery Company and Hugh Nettles, • alleging negligence on the part of Nettles as the agent'or servant of the Brookhaven Creamery Company, causing injuries to Albert Earl Furr resulting in death. In the trial of the case in the court below at the conclusion of the appellants’ evidence, the Brookhaven Creamery Company and Hugh Nettles, the defendants *12 there, moved the court to exclude the evidence offered by the plaintiffs and grant to each of them a peremptory instruction. The court below granted to the Brookhaven Creamery Company a peremptory instruction and entered a separate judgment for that defendant on that instruction. The court overruled said motion as to Hugh Nettles. Thereafter the evidence was offered before the jury on behalf of Hugh Nettles and rebuttal thereto, six or seven witnesses being examined. According to the stenographer’s certificate, which is undisputed, while the last witness was on the witness stand plaintiffs in the court below entered a motion for a non-suit on the ground that Nettles was insolvent. The court sustained the motion and the order was accordingly entered. Several days later appellants here, plaintiffs in the court below, made a motion for a new trial, alleging as ground therefor the action of the court in granting a peremptory instruction in favor of the Brookhaven Creamery Company. That motion was overruled by the court as shown by the order now in this record from which an appeal is prosecuted to the Court by Furr, et al. In making up the record the attorneys for the appellants instructed the stenographer not to transcribe her notes of the evidence taken on behalf of Hugh Nettles subsequent to the granting of the peremptory instruction, and the entry of the judgment discharging the Brookhaven Creamery Company from liability. The stenographer so transcribed the notes in due time, upon due notice, and also in compliance with the instructions of plaintiffs’ attorneys, only transcribed the notes of the evidence introduced by the plaintiffs prior to the time the court below granted the peremptory instruction in favor of- the Brookhaven Creamery Company, and did not transcribe the notes of the evidence offered by Hugh Nettles in his defense to the action. When the stenographer filed a transcript of her notes in due time, upon due notice, she notified all the attorneys *13 of the filing of the transcript of the notes of the evidence, bnt the record shows that the appellants ’ attorney at no time indorsed on the notes a certificate at the expiration of ten days, that the said notes had been delivered or mailed to the attorneys for the appellee. In fact, this was not done by appellants’ attorneys. In this state of the record, the stenographer’s notes would be stricken from the record because of the failure of counsel for the appellants at the expiration of ten days, the time allowed appellants ’ attorneys, to examine and correct the record, to certify that the said transcript was mailed or delivered to appellees’ attorneys. This is required by Section 726, Code of 1930, bnt under Section 728 it is provided that: “If notice as above required is given to the court reporter by appellant or his counsel within ten days after the conclusion of the .terms of court, no court reporter’s transcript of his notes shall be stricken from the record by the Supreme Court, for any reason, unless it be shown that such notes are incorrect in some material particular, and then only in cases where such notes have never been signed by the trial judge, nor been agreed on by the parties, nor become a part of the record as provided by this chapter. ’ ’ The transcript in this case had never been signed by the trial judge, nor been agreed on by the parties, nor had the certificate of the delivery of the record as corrected been attached thereto by appellants ’ counsel. In the case of Wilkinson v. Love, 149 Miss. 517, 111 So. 457,, 458, we held as follows: “The stenographer’s certificate to the transcript discloses that he filed it within the required time, and notified the attorneys thereof, but no certificate of the appellant’s attorneys is indorsed thereon disclosing that they delivered or mailed it to the appellee’s attorneys; consequently the transcript did not become a part of the record as provided by the statute, from which it follows that, if it is incorrect in some material particular, we must strike it from the record. ’ ’ Then the question is squarely presented that the evi *14 dence offered subsequent to the granting of the peremptory instruction for appellants here is material, in that it shows that Hugh Nettles was not liable in the action, and therefore the Brookhaven Creamery Company for that reason could not be held liable, and therefore the court below did not err in overruling the motion for a new trial. Assuming that the evidence offered on behalf of Nettles after the Brookhaven Creamery Company had been discharged from liability by judgment duly entered might be material, in that it tended to bolster or support the action of the court below when it granted the peremptory instruction to the appellee, Brookhaven Creamery Company, we know of no rule of law by which the trial judge on a motion for a new trial could look to the subsequent record for evidence to support the ruling of the court in granting a peremptory instruction at the time it was granted. When the peremptory instruction was granted the Brookhaven Creamery Company was no longer concerned with the trial between the plaintiffs and the defendant, Nettles. It was no longer concerned with his liability and upon a motion for a new trial, the question is, did the court err in granting the peremptory instruction at the conclusion of plaintiffs’ evidence. We think this case has been settled in H. Weston Lumber Co. et al. v. Hibbens, 182 Miss. 669, 182 So. 115, 116, in which case Hibbens sued H. Weston Lumber Co., Pearson and David J. Joseph Company. At the conclusion of the plaintiffs’ evidence the court granted to Joseph Company a peremptory instruction and thereafter proceeded with the trial against the remaining two defendants. A. verdict and judgment was rendered against them. Weston Company and Pearson appealed to this Court and Hibbens filed his cross-appeal from the judgment in favor of Joseph Company. In that state of the record, this Court said: “Error, vel non, in the ruling of the court relieving Joseph Company from liability must be determined on the evidence then before it, for Joseph Company there *15 after had no fiorther concern with the trial of the case and cannot he charged with the evidence thereafter introduced.” (Italics ours.) So we must say in this case that the Brooldiaven Creamery Company cannot be benefited by tbe evidence thereafter introduced, in tbe litigation between tbe plaintiffs and Niettles, that is, after it’ bad been discharged from liability on a peremptory instruction. A motion for a new trial does not change this sound rule, nor do we understand that on such a question tbe trial judge is invested with any more power or discretion than is this Court. If this Court could not look to tbe subsequent record, then bow could tbe trial judge on a motion for a new trial include evidence offered subsequent to its action in granting tbe peremptory instruction so as then to bolster or support that instruction, although it might have been improperly granted at tbe time tbe evidence for tbe plaintiffs was concluded. It will not do to bold that evidence offered after a party has been discharged from tbe court is either to bind him or be charged against him or to operate in bis favor or otherwise affect tbe ruling of tbe court theretofore made. We are of opinion that tbe case of Dickerson v. Western Union Telegraph Company, 111 Miss. 264, 71 So. 385, has no application to tbe undisputed facts in this motion. The question there was when a judgment became final as to several defendants and when tbe statute as to time for appeal began to run, and in that case it was held as to appeal that tbe judgment was not final for purposes of appeal to this Court until a judgment bad been entered as to all the defendants. We conclude in this case that tbe evidence offered by Nettles after tbe Brooldiaven Creamery Company bad been discharged from liability by tbe judgment of tbe Court or tbe granting of tbe peremptory instruction cannot be held to affect materially and favorably or adversely the appellee here. Motion overruled.