This is a motion to strike from the record the stenographer's transcribed notes of the testimony taken in the court below, on the ground that the notice required to *Page 246 be given to the court reporter, under section 725, Code of 1930, was not given until after the expiration of ten days from the adjournment of the court.
The motion must be sustained. In the case of Richmond v. Enochs, 109 Miss. 14, 67 So. 649, the Court held that the stenographer's transcript of the evidence which has not been made up and dealt with in the manner provided by law would be a nullity, and would be stricken from the record upon request of the opposing party. That the only instance in which the transcript which had not been made up in the manner pointed out by the statute shall be treated as a part of the record is when the transcript is made up pursuant to notice given to the stenographer within the time required by law, and is then not "incorrect in some material particular."
It was again held, in the case of Mayflower Mills v. Breeland,168 Miss. 207, 149 So. 787, 788, that "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."
The agreement made in regard thereto, at the time and under the circumstances disclosed by the proofs in support of this motion, was wholly ineffective. It should be explained, however, in justice to the receiver, that the motion to strike the stenographers notes in violation of the agreement is made after the termination of the receivership, and on behalf of the substituted appellee.
Therefore the motion is sustained.
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