Mullett v. Morris

Kirby, J., (after stating the facts). Appellant contends that the court erred in not directing a verdict in his favor and that the verdict is contrary to the evidence. The law provides for the appointment of an official stenographer by the circuit judge for each judicial circuit, who shall attend all terms of the circuit court and when requested by either party “make a stenographic report of all oral proceedings had in such court, including the testimony of witnesses with the questions to them, verbatim, the oral instructions of the court and any further proceedings or matter when directed by the presiding judge or upon the request of counsel so to do,” etc. The stenographer is required to furnish within twenty days after the trial of a cause or from the time of demand therefor, a certified transcript or typewritten copy of the proceedings taken in shorthand and file the same in the office of the clerk of the court in which the case was tried. A stenographer’s tax of three dollars is taxed as part of cost in the case and his transcript of the testimony is taken when a bill of exceptions is demanded as a part of the transcript of the proceedings of the cause to be used as part of the clerk’s transcript on appeal without charge for making same, except of five cents per hundred words to be charged by the clerk, collected as costs and paid into the stenographer’s fund. Kirby’s Dig., § § 1329-36. (1) Appellant insists that under the law the stenographer is not entitled to a fee for the bill of exceptions prepared by him. The transcript of the evidence and proceedings taken by the stenographer in the trial of the cause required by law to be filed by him with the clerk of the court in which the case was tried, is not a sufficient bill of exceptions and was never intended to be such, and it is available upon appeal only by being made a part of the bill of exceptions. Moore v. State, 65 Ark. 330; Dozier v. Grayson-McLeod Lbr. Co., 100 Ark. 244. (2) The law does not require the stenographer to prepare a bill of exceptions in the cause tried, but only a transcript of the evidence and certain proceedings to be filed with the clerk without any fee paid to him therefor, and it also provides that no party shall be denied his bill of exceptions on account of inability to pay the stenographer’s tax, etc. .Section 1334-5, Kirby’s Digest. (3) Of course the stenographer could not withhold the transcript of the proceedings from the clerk after demand therefor to compel the payment of the fees agreed to be paid him by the attorney of one of the parties to the suit for making a bill of exceptions in the case and it appears from the testimony that he filed such transcript with the clerk after he had been ordered to do so by the court in sufficient time for plaintiff’s attorney to have procured it and prepared a bill of exceptions within the time allowed therefor, if it did not require more time to do so than stated by bim at the trial. The faiet therefore that the transcript of the stenographer’s notes was wrongfully withheld from filing with the clerk for a. time does not relieve appellant from paying for the bill of exceptions prepared by the stenographer at the direction of his attorney, under an agreement that it would be paid for at a specified rate per page. The testimony shows the charge made and paid was in accordance with the price agreed upon and the jury found upon the testimony alone of plaintiff’s attorney that there was a contract for the making of the bill of exceptions. The testimony is sufficient to support the verdict, and the judgment is affirmed. •