Richmond v. Enochs

Smith, C. J., delivered the opinion of the court. This is a motion by appellee to strike the stenographer’s transcript from the record. The several grounds of the motion may be reduced to two: First, no notice was given the stenographer to transcribe and file his notes of the evidence, as provided by paragraph “a” of section 797, ch. 311, Laws 1910; second, that the transcript has “never been signed by the trial judge, nor been agreed on by the parties, nor become a part of the record by operation of law,” and is incorrect in a material particular. The term of the court at which the judgment appealed from was rendered ended on March 29, 1913. Notice to transcribe his notes of the evidence was given the stenographer on May 27th thereafter. On June 16th the stenographer delivered to counsel for appellant a transcript of the evidence, and he in turn immediately delivered it to counsel for appellee, with the request that they examine and correct it. This they declined to do, but returned it to counsel for appellant, who thereupon filed it with the circuit clerk. It was not approved by, and seems never to have been tendered to, the circuit judge. Subdivision “a” of section 797, ch. Ill, Laws 1910, is as follows: “In all cases in which the evidence is noted by the official stenographer, any person desiring to appeal the case shall notify the stenographer in writing within thirty days of the adjournment of court of the fact that a copy of the notes is desired. This notice must be handed to the stenographer personally, or mailed to him at his usual place of abode. In either case the attorney making the request shall file with the clerk of the court a copy of the notice with a statement as to how the notice was served. Upon receipt of such notice it .shall be the duty of' the stenographer to transcribe his notes within sixty days of the date of such notice.” [20] And subdivision “d” thereof is as follows: “Provided notice as above is given to the stenographer by the appellant or his counsel within thirty days after the conclusion of the term of court, no stenographer’s transcript of his notes shall be stricken from the record by the supreme court, for any reason, unless it be shown that such notes are incorrect in some material particular, and then only in cases where such notes have never been signed by the trial judge, nor been agreed on 'by the parties, nor become a part of the record by operation of law.” Bills of exceptions, by which matters occurring on the trial and not otherwise of record are preserved and and made a part of the record, were unknown to the common law, are founded wholly upon statutes, and can be made up only within the time and in the manner and place provided in the • statutes. The settling of a bill of exceptions is not a judicial but a ministerial act; and the power of the court below so to do, as well as the power of this court in determining whether or not a record which purports to be a bill of exceptions is such in fact, is measured by the statute providing therefor. Van Buren v. State, 24 Miss. 512; Railroad Co. v. Ragsdale, 51 Miss. 447; Allen v. Levy, 59 Miss. 613; Albrecht v. State, 62 Miss. 516; Chenault v. Adams Machine Co., 97 Miss. 487, 52 So. 189. In the absence of subdivision “d” of section 797, ch. Ill, Laws of 1910, a bill of exceptions or stenographer’s transcript of the evidence not made up and dealt with in the manner provided by that statute would be a nullity, and would be stricken from the record upon request of the opposing party. The only instance in which the statute provides that a bill of exceptions or transcript of the evidence not made up in the manner pointed out therein shall be treated as a part of the record is when it is made up pursuant to notice “given to the stenographer by the appellant or his counsel within thirty [21] days after the conclusion of the term of court,” and is not “incorrect in some material particular.” Since this notice was not given in the case at bar, it necessarily follows that the bill of exceptions is a nullity, and must be stricken from the record, without reference ttr whether or not it is “incorrect in some material particular.” In Railroad Co. v. Chambers, 103 Miss. 400, 60 So. 562, we declined to strike a transcript of the evidence from the record, although no notice had been given the stenographer to transcribe and file his notes, and in the course of the opinion it was said that: “Carrying out the spirit of this statute, we will not simply obey the strict letter thereof, but will refuse to strike such a transcript from the record for any reason, when it is not shown to be incorrect in some material particular, unless to refuse so to do would be manifestly unjust to a party affected thereby. If the transcript of the notes is correct, it is immaterial how the stenographer. came to make it; and.it is difficult to conceive how any party could have any just ground of complaint. because it is, if correct, incorporated in the record.” This, counsel for appellee very properly say, substitutes the rule of justice for the rule provided by the statute, and so to do is not within the power which rightfully belongs to this court. We, of course, are supposed to administer justice, but only in accordance with law. In order that that case may no longer mislead, it is hereby expressly overruled. The motion must also be sustained upon the second ground. The suit was instituted in order to recover damages for the alleged publication by the defendant of a libel upon the plaintiff. At the close of the plaintiff’s evidence it was excluded by the court, and a peremptory instruction given to find for the defendant. The alleged libel was published in the Clarion-Ledger, a newspaper published in the city of Jackson. A copy [22] of this paper containing it was introduced in evidence, but was not marked as an exhibit by the stenographer and reference made to it in his notes, as required by section 4790 of the Code, so that it could be .identified and. copied by the clerk into the record, and therefore cannot now be made a part thereof. It was stated at the bar by counsel for appellant that this alleged libel was made an exhibit to the' pleadings, appears more than once in the record, and therefore it was unnecessary for the clerk to again copy it into the record in this connection. All of this may be true, and under rule 2 an exhibit to the pleadings and evidence need not be copied into the record but once, when proper cross-references are made thereto by the clerk; but such cross-references do not appear here, and in fact cannot be made, in the absence of an identification by the stenographer of the paper containing the alleged libel. . • Motion sustained.