Chenault v. Adams Machine Co.
| Decision Date | 25 April 1910 |
| Citation | 97 Miss. 487,52 So. 189 |
| Court | Mississippi Supreme Court |
| Parties | CLARENCE H. CHENAULT v. ADAMS MACHINE COMPANY |
March 1910
FROM the circuit court of Attala county, HON. GEORGE A. MCLEAN Judge.
Chenault appellant, was plaintiff in the court below; the Machine Company, appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court. The appellee moved the court to strike from the record the stenographer's report or notes of the evidence. The facts upon which the motion was based are stated in the opinion of the court.
Motion sustained.
Luckett & Guyton, for the motion.
Flowers Fletcher & Whitfield, contra.
[The briefs of counsel on the motion could not be found by the reporter, hence synopses of them are not given.]
There is a motion filed in this cause to strike out the stenographer's notes, because filed after the time allowed by law. We may say in the outset that after the most careful inspection of this record we have failed to find that the stenographer's notes were ever marked "Filed;" but, since counsel on both sides seem to agree that the notes were filed on the 27th day of December, 1909, we waive this question, and consider the case as if it appeared that the notes were filed on above date.
This case seems to have been tried at the September term of the circuit court of Attala county and the court seems to have adjourned on the 23d or 25th day of September. If the court adjourned on the 23d day of September, then it was ninety-four days from the date of adjournment until the notes were filed; and if it adjourned on the 25th, then it was ninety-two days from the date of adjournment until the filing of the stenographer's notes. In either case, if section 797 of Code of 1906 controls, the notes were not filed until after the expiration of the maximum time allowed by that section for the filing of the notes. After the trial of the case, a motion for a new trial was duly made, and in overruling this motion the court allowed ninety days for the preparation and filing of the stenographer's notes, which action of the court is authorized by section 797 of the Code. After this was done, and long after the adjournment of the court, but before the expiration of the ninety days already allowed, the judge undertook to still further extend the time, and an order was made on the 20th day of December, 1909, allowing twenty days' additional time for filing the stenographer's notes; the extension of time to run from the expiration of the time already allowed. In short, under the time allowed by the trial judge on the overruling of the motion for a new trial, plus the time allowed by the order made on the 20th day of December following, one hundred and ten days are allowed the stenographer in which to transcribe and file the notes.
It is claimed that section 4791 of the Code is controlling in this case, and that this section gives the judge the power attempted to be exercised by him. In order to properly understand and construe section 4791, it is necessary to examine the chapter in which this section is found, and to keep in mind the subject it deals with and the object intended to be accomplished by it. When this is done, it will be readily seen that there is no conflict between sections 797 and 4791. Each stands independently of the other, and each accomplishes, without conflict, the purpose of its enactment. It cannot be doubted that a time limit should be fixed for the preparation and filing of stenographer's notes when an appeal is taken. If there was no time limit for this, much confusion and injustice would be the result. When section 797 is examined, there can be little doubt but that this time limit is fixed, definitely and beyond doubt. The time limit is fixed by section 797 at sixty days from the end of the court, if there be no order of the judge giving further time; but the judge may extend the sixty days to ninety, under the provisions of this statute, but no longer. This section--that is to say, section 797--is the statute which fixes the limit of time to control both the judge, the parties, and the stenographer as to what time may be allowed for filing stenographer's notes. Of course, it is needless to say that parties may agree among themselves for further time; but the judge cannot grant further time than ninety days from the end of the term as a matter of official power. The judge derives his powers from the statute, and the exercise of the powers are limited by it.
In order to understand section 4791, let us review, to a limited extent, the chapter in which it is found and the object of the chapter. The chapter is dealing not with the procedure in reference to completing the appeal by dealing with the stenographer's notes. This subject is settled by section 797. The chapter in which this section is found is chapter 135, and its object and purpose is to regulate the stenographer himself. The purpose of the chapter is to provide the manner of appointment of the stenographer for the court, prescribe his oath, fix the term of office require bond, and prescribe his duties. In short, the whole object of this chapter is outside of any purpose sought to be accomplished by section 797. When section 4791 is read in this light, and construed in connection with section 4790, all doubt as to the meaning of section 4791 is cleared up. By section 4790 it is made the duty of the stenographer, on demand of either party, within twenty days from the conclusion of the trial or from the time of demand, to transcribe the notes and certify, sign, and file with the clerk. Let it be noted...
To continue reading
Request your trial