Scarborough v. Harrison Naval Stores Co.

Whitfield, O. J., delivered the (first) opinion of the court, sustaining the motion. This is a motion to strike out the stenographer’s notes because one of the firms representing the defendant below, Ford, White & Ford, was not notified in any way by the clerk, as required by Code 1906, § 797, that said notes had been received by the clerk and were on file. There is a conflict of evidence between the deputy circuit clerk, on the one hand, and Mr. Ira Ford and Dr. W. R. Kell, the family physician of Ira Ford, on the other hand. The statute makes it the imperative duty of the circuit clerk to notify each attorney or firm. The language of the statute is as follows: “As soon as the stenographer’s notes, transcribed, shall be first received by the clerk of the circuit court, he shall notify each attorney, or firm, interested in such case, by mail or in person, that said notes were received and are on file.” In this case it appears that the firm of Doty^ & Elmer were first employed by the appellee corporation, and filed certain pleas, and that later some members of this corporation employed another firm, Ford, White & Ford, to represent them in the case, and they filed certain other pleas. [499] . It is a very easy matter for the circuit clerk to comply with this very wholesome statute. It is .his duty to give this notice, as the statute requires, to each firm interested in the case, and this duty he should discharge promptly and carefully. We do not care to say more about the testimony in this case on this point than that the testimony does not show, satisfactorily, that the clerk complied with this duty. He has not met the burden imposed upon him by the law, by a sufficient showing. The statute means exactly what it says — that he shall notify each attorney or each firm interested in the case. For very obvious reasons, each separate firm interested in the case should be notified, and in this case it is, we think,. sufficiently clear that the firm of Ford, White & Ford were not notified in any manner that these notes were filed within the proper time. If we were to hold that it would be sufficient to notify one firm, where two are interested, it might be that the leading firm might never have notice, and yet the statute be held to be complied with. It is not for us to question the wisdom of the legislature in providing strictly, as it has done, that the clerks shall notify each attorney or firm interested. We cannot legislate. Our duty is simply to enforce the statute as it is written. The motion is sustained, and the notes striclcen out.