Central Railroad v. Robertson

Lumpkin, Justice. The facts necessary to an understanding of the rulings made in the present case will be stated by the reporter. Section 4696(a) of the code makes it the duty of the official reporter, “ when directed by the judge, as hereinafter set forth, to exactly and truly record, or [743] take stenographic notes of, the testimony and proceedings in the case tried, except the argument of counsel.” Section 4696(b), as amended by the act of October 12th, 1885, provides for the compensation of reporters for services rendered in criminal cases. Section 4696(c) provides for their compensation for services in civil cases. The last section contemplates that there may be an agreement between counsel for the parties that the evidence shall be recorded; or, in case of disagreement, that the presiding judge may direct the same to be recorded. In the absence of such agreement, it is within the power of the judge to fix the reporters compensation at a rate not exceeding ten cents per hundred words, and to prescribe the manner in which payment shall be made. Construing together sections 4696(a) and 4696(c), we have no difficulty in reaching the conclusion that the authority of the judge in civil cases is not limited to directing the stenographer merely to take down stenographic notes of the evidence, but we think he undoubtedly has the power to require the stenographer to write the same out in longhand, so that the judge may use the report, if needful, in examining, revising and approving the brief of the evidence which may be presented to him, should there be a motion for a new trial or other proceedings in the case. Nor, is this power of the judge confined to'the time when the brief is presented. He may thereafter require the stenographer to write out his report, if this should be .necessary in order to enable the judge to test the brief and make it accurate. The report of the testimony and proceedings upon the trial of a case is in no sense a brief of the evidence, and was never so intended. This report may be, and doubtless very often is, quite useful in preparing and verifying a brief of evidence. The parties can, by agreement, have the report made, and arrange between themselves and the stenographer for his compensation. [744] If no agreement is made, the presiding judge may, of his own motion, direct the stenographer to take down in shorthand the testimony and other proceedings; and he may also, as already stated, prescribe by whom, and what amount, the stenographer shall be paid. If there should be no necessity for writing out the notes in longhand, the judge, in fixing the amount of the stenographer’s compensation, would, of course, allow him less than would be allowed in case he should be required to write out his report. It being within the power of the judge to require the testimony and proceedings not only to be taken down, but also to be written out, it is his right to use the stenographer’s report in passing upon, correcting and approving the brief of evidence, and in verifying the motion for a new trial. There is no law, however, which requires a party moving for a new trial, or his counsel, to make up a brief of the evidence from the official stenographer’s report. It is simply incumbent upon the movant’s counsel to prepare and present to the judge a correct brief of the evidence, and in so preparing it he may resort to his own memory, to notes taken by himself, or to any other source, so that the brief he does present for approval be fair and accurate. The presiding judge has no power or authority to require any party to. produce the stenographer’s'report, or a copy of it, in verifying a brief of evidence. We have already seen that the judge may have the use of such report simply by directing it to be made, without reference to the wishes of the parties. It follows from the foregoing that the judge erred in declining to examine the brief of evidence tendered by movant’s counsel, and consequently, in dismissing the motion for a nev^ trial for want of a brief. The principle of the ruling made in this case will also be applicable to the preparation of a brief of evidence to be inserted in a bill of exceptions where there has been no motion [745] for a new trial, but where, in reviewing the action of the trial court, a consideration of the evidence is necessary. Judgment reversed.