Evans v. Ham

Mayes, C. J., delivered the opinion of the court. This case is before the court on motion of appellee to strike out the stenographer’s notes. The only grounds specified in the motion as cause for striking out the stenographer’s notes are, first, because the appellant failed to deliver the notes to the attorney representing appellee, as required by section 797a, Code 1906, as added by page 93, Laws 1910; and, second, that the notes were not delivered to the attorney for appellee until more than thirty days after they were filed in the office of the circuit clerk. There is no attempt on the part of appellee to make any showing that the notes were incorrect “in some material particular,” but the sole grounds relied on are as above stated. In this view of it, we apprehend that counsel making the motion overlooked section 797d, Code 1906, as added by Laws 1910, p. 94. This section provides that whenever the appellant or his attorney notifies the stenographer in writing that a copy of the notes is desired, within thirty days after the conclusion of any term of court, “no stenographer’s transcript of his notes shall he stricken from the record by the supreme court, for any reason, unless it be shown that such notes are incorrect in some material particular.” This showing was not made, nor is it stated in the motion that the notice required by section 797a was not given. [733] Of course, the right to dismiss a case under section 4921 of the Code of 1906 still remains, and may he resorted to in any proper case. But the last section has no hearing on the motion now under consideration. Motion overruled.