Clark v. Merchants' & Manufacturers' Bank

Smith, C. J., delivered the opinion of the court. On the 1st day of July, 1921, a notice in the form prescribed by the statute was given by counsel for the appellant to the stenographer who took down the evidence in the trial of this case in the court below that a transcript thereof was desired. The decree rendered in the case was entered on the minutes of the court four days thereafter; that is, on the 5th day of July, 1921. The court below adjourned finally on the 9th day of July, 1921. It is stated in the brief of counsel for the appellant that the case was orally decided by the chancellor on the 1st day of July, 1921, but that the decree was not prepared and entered until the 5th day of July, 1921, and that the notice to transcribe his notes Was given to the stenographer after the chancellor’s oral decision had been announced. This statement is not denied by counsel for the appellee, and we therefore presume that it is true. The appellee now moves the court to strike the stenographer’s transcript of the evidence from the record for the reason that the notice given to the stenographer to transcribe his notes does not comply with the requirement of chapter 145, Laws of 1920, that: - “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 ten days after the adjournment of court of the fact that a copy of the notes is desired. The notice must be handed to the stenographer personally or mailed to him at his usual place of abode.” The contentions of counsel for the appellee are that, first, chapter 145, Laws of 1920, requires the notice to be given the stenographer after the adjournment of the court and before the expiration of ten days therefrom; and, if [211] mistaken therein, then, second, the notice cannot be given prior to the rendition of the judgment or decree appealed from. We are of opinion that the statute does not require the notice to be given after the adjournment of the court, but only that it be given before the expiration of ten days therefrom, and that notice given after the oral decision of a case and before the entry of the judgment on the minutes of the court is valid. Overruled.