Humphrey v. Crorow Hardwood Co.

• Decision Date: 28 March 1932
• Docket Number: 29911
• Court: Mississippi Supreme Court
• Parties: HUMPHREY et al. v. CROROW HARDWOOD CO

140 So. 690

163 Miss. 490

HUMPHREY et al. v. CROROW HARDWOOD CO

No. 29911

Supreme Court of Mississippi

March 28, 1932

Division B

1. APPEAL AND ERROR.

Chancellor's affidavit in respect to proceedings and transcribing of stenographer's notes is controlling.

2. APPEAL AND ERROR.

Exhibits not copied in record, but before chancellor and used by him in reaching decision, may be made part of record by agreement or by certificate of chancellor.

3. APPEAL AND ERROR. Showing required overruling of motion to strike stenographer's notes on ground notice was not given to file notes and that notes were incorrect and incomplete.

Affidavit of stenographer was to effect that notes as originally filed were not a true and correct copy of the evidence, there being missing pages, but that search was made and pages thereafter added, while affidavit of chancellor was to effect that notes were transcribed by stenographer and furnished to him for purpose of rendering decision and used for such purpose.

HON. T PRICE DALE, Chancellor.

APPEAL from chancery court of Pearl River county, HON. T. PRICE DALE, Chancellor.

Suit by the Crorow Hardware Company against J. F. Humphrey and others. From the decree, defendants appeal. On motion to strike stenographer's notes. Motion overruled.

Overruled.

Hathorn & Williams, of Poplarville, for appellants.

The stenographer's notes ought not to be stricken, even if the same fails to contain some of the exhibits offered by appellee not shown to be material to the said issue of adverse possession, which is the only issue in the case.

Robinson v. McKnight, 133 Miss. 501, 97 So. 811.

Appellants concede that the statutory notice in writing was not given to the stenographer, therefore, that the notes have not become a part of the record in the statutory manner. However the notes became a part of the record because what took place in the court below with reference to the notes and the trial of the case was tantamount to an agreement between the parties that the transcribed notes should become a part of the record in this case for the purpose of appeal.

Cooper v. Martin, 102 So. 851.

Parker & Shivers, of Poplarville, and L. L. Tyler, of Picayune, for appellee.

The court's attention is directed to the fact that the entire record now in this court was made up in the office of counsel for defendant, appellant here, including the stenographer's certificate and it is obvious that a studied effort was made to put into the record all of the evidence favorable to the appellant, and to leave out all evidence in favor of appellee. The record was not made as required by law.

The case at bar does not fall within the case of Cooper v. Martin, 102 So. 851. In that case, there was no question as to the correctness of the stenographer's notes. In the case at bar, the transcript found in the record, itself, is shown not to be complete. The decree recites that evidence not shown by the pretended transcript was introduced. The chancellor and the stenographer make affidavit on behalf of appellee that the transcript is not correct. Counsel for appellee make affidavit as to the incorrectness of the transcript and the original exhibits marked and identified by the stenographer in his own handwriting are exhibited to the court as irrefutable proof that the transcript does not contain all the material evidence introduced in the cause.

Appellant urge in their brief that all of the evidence material to the question of adverse possession is shown by the record, whereas, it is made to appear from affidavits in the cause that evidence of payment of taxes from 1888 to the date of trial, and of the assessment of the property involved, the appellee and its predecessors in title was offered in chief support of its original bill of complaint claiming the land by adverse possession. The original exhibits identified by the stenographer as introduced by the complainant, in chief are now before the court in connection with affidavit of J. C. Shivers. Certain it is that such evidence was material and is material in this case.

Native Lumber Company v. Elmer, 117 Miss. 720, 78 So. 703; Ewing v. Burnet, 36 U.S. 41, 9 L.Ed. 624; Fletcher v. Fuller, 120 U.S. 534, 30 L.Ed. 759; Holzman v. Douglass, 168 U.S. 278, 42 L.Ed. 466; McCaughn v. Young, 85 Miss. 277, 37 So. 839.

Appellee is not required to now try its case on consessions by appellant as to what may be considered by this court. It is entitled to have the record made up by the officers charged with that duty in the regular way, and should not and cannot be called upon to try this case here on ex parte conflicting affidavits made five years after the incidents above which the various witnesses testified, have occurred.

The motion to strike should be sustained.

OPINION

Ethridge, P. J.

The appellees filed a motion to strike the stenographer's notes on the following grounds:

"1st. Because no notice was given by the appellants to the stenographer to transcribe and file his notes within ten days from the adjournment of the October, 1927, special term of the chancery court of said county;

"2nd. Because the said stenographer's notes did not become a part of the record by operation of law, or by any agreement of the parties;

"3rd. Because the record shows that the said stenographer's notes, as contained therein, are incorrect and incomplete, and they do not show any of the direct testimony introduced by appellee complained of in the court below, nor any of the exhibits introduced by appellee, nor does it show any of the evidence introduced at the October, 1927 special term of said court when the said final decree was rendered on testimony taken at the February and October terms of court;

"4th. Because said notes do not embody the evidence on which the chancellor heard said case and rendered final decree, but embody only the oral testimony in said cause the exhibits introduced by defendant, appellant here."

Accompanying the motion are affidavits by the counsel for appellee, the official court stenographer, and by the chancellor. The stenographer makes affidavit that the notes, as originally filed, were not a true and correct copy of the evidence; there being missing pages. Search was made and pages 27 and 28 were added. Page 27 shows the style of the case, the county, the court, and the chancellor, and page 28 reads as follows:

"By Mr. Shivers: It is admitted that E. H. Hoffman, chancery clerk of Hancock county at the time this land is alleged to have been sold, is now dead. It is also admitted that J. F. Cavenue, who was alleged to be sheriff and tax collector of Hancock county, during the years 1888 and 1889, and whose name purports to be signed to the tax deed, is now dead. It is also admitted that Mr. E. E. Deuville is now dead.

"By Mr. Shivers: The complainants first offer in evidence a certified copy of the assessment roll of Hancock county for the year 1887, page 76, showing the assessment of the land in question.

"By Mr. Hathorn: If the court please, we are going to object to this and we anticipate no such evidence to be offered unless the court is satisfied now that the objection should be sustained we would ask the court to reserve a ruling on it until all this evidence is offered and we can take it up together and ask the court's ruling on all of it together, it will be before the court on this reserved ruling.

"By Mr. Shivers: That will be perfectly satisfactory, after all the evidence we have in this case is introduced it will be perfectly satisfactory for the court to pass on it at that time.

"By the court: Alright--let a ruling be reserved."

The chancellor, after the finding and filing of pages 27 and 28, made the following affidavit:

"This day personally came and appeared before me, the undersigned authority in and for said county and state, Judge T. Price Dale, chancellor in and for the tenth chancery court district of the state of Mississippi, who, being by me first duly sworn, says on oath that he was in February, 1927, and in March, 1927, and in October, 1927, and is now the duly elected, qualified and acting chancellor in and for said chancery court district of the state of Mississippi which includes Pearl River county. That as such chancellor he presided at the trial of the cause styled Crorow Hardwood Co. v. J. F. Humphrey et al., numbered 1876 on the general docket...