Johnson v. U.S. Gypsum Co., 4-9166

• Decision Date: 08 May 1950
• Docket Number: No. 4-9166,4-9166
• Citation: 217 Ark. 264,229 S.W.2d 671
• Parties: JOHNSON et al. v. UNITED STATES GYPSUM CO.
• Court: Arkansas Supreme Court

Page 671

229 S.W.2d 671

217 Ark. 264

JOHNSON et al. v.UNITED STATES GYPSUM CO.

No. 4-9166.

Supreme Court of Arkansas.

May 8, 1950.

Rehearing Denied June 5, 1950.

K. T. Sutton, Helena, Grover N. McCormick, Memphis, Tenn., for appellants.

Cracraft & Cracraft, Helena, for appellee.

GEORGE ROSE SMITH, Justice.

This is a bill in equity brought by the appellee to enjoin the appellants from trespassing and cutting timber on lands to which the appellee holds the record title.The appellants disputed the appellee's ownership and introduced testimony to show that they have acquired title by adverse possession.The chancellor ruled against the appellants on the issue of adverse possession and permanently enjoined them from entering the property.

In its brief in this courtthe appellee contends that the oral evidence heard below was not properly preserved and cannot be considered by us in the determination of the case.With much reluctance we have concluded that this contention must be sustained, so that we may examine only the face of the record in our review of the chancellor's decree.

At the beginning of the trial the court directed the reporter to take down the testimony, transcribe it, and file it as depositions.The decree contains a recital that when the transcribed testimony has been filed under the certificate of the official court reporter for the Fifth Chancery District it shall become a part of the record in the case.Apparently this method of preserving the testimony was suggested by opinions such as that in McGraw v. Berry, 152 Ark. 452, 238 S.W. 618, where we stressed the necessity for the court's giving his instructions to the reporter at the beginning of the trial rather than in the decree alone.

In the present case, however, the difficulty lies in the fact that the procedure in the Fifth District has been changed by Act 269 of 1949, which became effective before the trial below.That Act authorizes the appointment of an official court reporter for this District and explicitly states that his transcription of the testimony, 'when approved by the court,' shall be inserted in the transcript for an appeal to this court.Section 3 of the Act reads in part: 'In cases of appeal to the Supreme Court, the transcribed notes of the stenographer shall be treated as a bill of exceptions or as depositions in the case until the same is approved by the Chancellor trying the cause and such approval must be given during the term or within the time fixed for such approval by the court.'

We have italicized three words merely to show that there is an obvious omission or typographical error in the wording of the Act.The legislature evidently meant that the transcribed notes shall not be (instead of 'shall be') treated as a bill of exceptions or as depositions until approved by the chancellor, or perhaps that they shall be so treated when (instead of 'until') approved by him.When a word in a statute is omitted or misused it is the duty of the courts to disregard the error if the context plainly indicates the legislative intent.State ex rel. Atty. Gen. v. Chicago Mill & Lumber Co., 184 Ark. 1011, 45 S.W.2d 26.Act 269 contains more than one reference to the court's approval of the reported testimony, and the very sentence that contains the error fixes the time within which the approval must be given.In view of this context we cannot refuse to give effect to...