Mississippi State Highway Department v. Meador

• Decision Date: 20 February 1939
• Docket Number: 33518
• Citation: 184 Miss. 381,185 So. 816
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE HIGHWAY DEPARTMENT v. MEADOR et al

185 So. 816

184 Miss. 381

MISSISSIPPI STATE HIGHWAY DEPARTMENT v. MEADOR et al

No. 33518

Supreme Court of Mississippi, Division A

February 20, 1939

January 23, 1939

APPEAL from the circuit court of Wayne county HON. ARTHUR CT. BUSBY Judge.

Eminent domain proceedings by the Mississippi State Highway Department against Ben Meador and others. From an adverse judgment, the plaintiff appeals. On motion to strike bill of exceptions from record. Motion sustained.

On merits, affirmed.

Motion sustained. Affirmed.

F. B Collins, of Laurel, for appellee on motion.

The motion to strike the bill of exceptions should be sustained (1) Because the purported bill of exceptions is not a transcript of the stenographer's notes and therefore is a bill of exceptions and is regulated by statute and must be prepared and filed within the time allowed by the statute and according to the provisions of the statute; (2) It is the contention of appellee that the time allowed by statute for preparing and filing a bill of exceptions had expired' before this bill of exceptions was prepared and presented to the circuit judge and, therefore, should be stricken from the record because it was prepared and filed out of time.

Van Burden v. State, 24 Miss. 512; Railroad Company 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; Richmond v. Enochs, 67 So. 649; Sections 589, 725, 726, 727, 728 and 729, Code of 1930; Miss. Central R. R. Co. v. Chambers, 60 So. 562.

Perchance it might be contended by counsel, because a part of the transcribed notes, as he says, appear in the bill of exceptions, then that part of it should not be stricken, but to that we say that there is no certificate of the stenographer who took the notes that it is a transcript of the stenographer's notes, and, too, it was held in the case of Benjamin v. Virginia-Carolina Chemical Company, 126 Miss. 571, 87 So. 895, that where only a part of the official stenographer's notes are reported and omissions not supplied they will be stricken.

Wilbourn, Miller & Wilbourn, of Meridian for appellees on motion.

The giving of notice to the stenographer or not is immaterial here, for the reason that the stenographer died without transcribing, certifying thereto, and filing the, or any, transcript of the notes taken by him of the evidence and proceedings on the trial. The notice was given before the lower court adjourned, and not within ten days after the adjournment, as the statute contemplates.

Mayflower Mills v. Breland, 149 So. 787, 168 Miss. 207.

The transcript of a portion of the testimony purportedly made by the stenographer, is not certified to by him, and is not a part of the purported bill of exceptions herein by reason of having been certified to and filed by him. Besides it only purports to be a part of the testimony on the trial in the court below. It therefore cannot be considered as a stenographer's transcript under Section 725 of Code of 1930 of Mississippi.

The bill of exceptions must stand or fall purely as a bill of exceptions, and unless authorized and presented in the manner and within the time prescribed by law it should be stricken.

Sections 589 and 729, Code of 1930.

The stenographer died on March 15, 1938. The judge allowed the sixty days called for by Section 729, Code 1930, for a bill of exceptions on March 18, 1938. This exhausted the judge's authority.

Allen v. Levy, 59 Miss. 613.

The purported bill of exceptions was not presented to the judge within the sixty days from March 18, 1938, nor until July 12, 1938. The circuit judge was without power to sign and thus validate the bill of exceptions where it was not presented to him within the sixty days.

Y. & M. V. R. R. v. Dampear, 66 So. 814, 108 Miss. 451.

This is not a case where the Supreme Court can itself settle the bill of exceptions. We submit it has no such jurisdiction.

Geiselbreth v. Miss. Power & Light Co., 166 Miss. 749, 147 So. 874.

It is neither the duty nor the right of the Supreme Court, which has only appellate jurisdiction, to adjudicate what happened in the lower court, and settle for that court what its record was. This is especially true here under the facts of this case.

E. R. Holmes, Jr., Assistant Attorney-General, for appellant on motion.

We contend at the outset that in accordance with the statutes concerning appeals, and particularly sections 728 and 729 of the Code of 1930, with reference to transcripts and bills of exceptions, our appeal here has been properly taken.

We gave notice to the official court reporter in ample time. The time for the completion of his transcript of his notes did not expire until March 21, 1938. He died on March 15, 1938, and before the 21st of March we had asked for and received sixty days additional time, in accordance with Section 729 of the Code.

After finding that it was impossible to have these notes transcribed by another stenographer and within the additional sixty days granted by the circuit judge, appellant prepared its special bill of exceptions, and in accordance with the agreement of counsel it was signed as of July 12, 1938. The two orders of the circuit judge and the signing of the bill of exceptions itself are conclusive proof that a part of the bill of exceptions, to-wit, Exhibit 1 thereto, is the original of a part of the stenographer's official transcript of his notes.

As Section 728 of the Code says that if notice is given to the court reporter within ten days after the conclusion of the term of court--and our notice was not only given within ten days after the conclusion of the term of court, but was actually given before the adjournment of court--no court reporter'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 upon by the parties, nor become a part of the record as provided by this chapter. We say, first, that the notice was given within the time allowed by law; second, that appellees have not said or attempted to say that these notes are incorrect; third, that they have been signed by the trial judge, as the bill of exceptions was signed by him; fourth, that they have been agreed on by the parties as shown on page 7 of the bill of exceptions; and fifth, that they have become a part of the record as provided in Section 729 of the Code, to-wit, because they have been made a part of the bill of exceptions.

We are firmly convinced that the matter was one within the discretion of the trial judge, and we will go further and say that if there was any fault in the preparation of this record or this bill of exceptions, the appeal should not be dismissed but should be heard on its merits because the State is involved, and as the court said in State v. Woodruff, 150 So. 760, 170 Miss. 744, if the State's counsel fails to take care of the State's interest in litigation and this becomes apparent to the court, the court should see that the public interests are protected.

The Highway Commission is the State as, in many cases, this court has held that it is a governmental subdivision engaged in carrying out governmental functions, and suit is maintainable under general statutory authorization to sue only for liability expressly granted by statute or necessarily implied.

Stewart v. Highway Commission, 148 So. 218, 166 Miss. 43; State Mineral Lease Commission v. Lawrence, 157 So. 897, 171 Miss. 442.

E. R. Holmes, Jr., Assistant Attorney-General, for appellant.

It is our opinion that whatever the testimony in this case may have been the jury was given two different measures of damage by which to go, and that, therefore, they were so confused by the court's instructions that they could not bring in a proper verdict.

City of Higgins, 81 Miss. 376, 33 So. 1; Schlicht v. Clark, 114 Miss. 354, 75 So. 131; State Highway Commission v. Randall, 180 Miss. 839.

We frankly maintain that this suit should be reversed and the cause remanded for a new trial, because, in its present state, with no testimony in the record, and with two different formulas before the jury for the measure of damages, no one could possibly tell whether a fair and just verdict was rendered or not.

The court below refused three instructions which were asked for by the plaintiff, appellant here. These three instructions clearly embody the law as set out by this court in the case of State Highway Commission v. Brown, 176. Miss. 23, 168 So. 277.

Smith v. State Highway Commission, 183 Miss. 741.

Frank Clark, of Waynesboro, and F. B. Collins, of Laurel, for appellees.

It has been the rule announced by this court ever since it has been a court that the duty devolves upon the appealing party to perfect a record in the Supreme Court and that this court will not reverse any case for alleged errors not apparent of record.

Ventress v. Smith, 35 U.S. 161, 9 L.Ed. 382; Pender v. Felts, 2 S. & M. 535; Green v. Creighton, 7 S. & M. 197; Doty v. Lucas, 43 Miss. 337; Schraff v. Chaffe, 9 So. 897, 68 Miss. 641.

It is also the uncontroverted rule of this court that every presumption in favor of the validity of a judgment must be resolved in favor of its validity. Second, that the instructions cannot be reviewed unless the testimony is in the record.

Davis v. Brown, 27 Miss. 265; Miss. Cotton Oil Co. v. Blake, 20 So. 156; Wilkinson v. Griswold, 12 S. & M. 669; Muirhead v. Muirhead, 8 S. & M. 211.

It will also be presumed, and conclusively presumed in the absence of a showing in the record to the contrary, that the appellants requested and...