Miller v. Phipps

On the Motion. McGowen, J., delivered the opinion of the court on the motion to strike bill of exceptions from the record. This case was tried in vacation by a special chancellor. The official stenographer was duly notified to file a transcript of the evidence, but failed so to do; and, within the time allowed therefor by paragraph d, section 1, c. 145, Laws 1920, Hemingway’s Code 1927, section 599, which now appears as section 729, Code of 1930, counsel for the appellant presented to the chancellor a bill of exceptions setting forth his conception of the evidence introduced and rulings made at the trial. The *571 chancellor' declined to sign the bill of exceptions, and counsel then attached thereto his affidavit to the correctness thereof and filed it with the clerk of the court below. A motion has been filed by counsel for the appellee to strike this bill of exceptions from the record. On the failure of the stenographer to file a transcript of the evidence a bill-of exceptions may be prepared, under the statute hereinbefore referred to, “as in cases where no stenographer takes down the evidence,” and, in event of the refusal of the trial judge to sign such bill of exceptions, it can be made a part of the record by the attorney who represented the party taking the appeal making affidavit to the correctness thereof, “and proceedings shall be taken thereon similar to those provided in preceding section for cases in which the judge should be prevented from signing the bill of exceptions.” Code 1906, section 797. The “preceding section” is section 796, Code 1906, Hemingway’s Code 1927, section 594, which now appears as section 589, Code 1930-, under which such a. bill of exceptions will be accepted by this court unless and until error therein is pointed out by counsel for the appellee in the manner provided by the statute. In the absence of a denial under oath that the bill of exceptions is correct, we treat same as though it had been agreed to be correct by counsel. This record is not so challenged, and therefore the question of whether or not it is correct is not here presented for decision. The motion will be overruled.