Sovereign Camp, W. O. W. v. Sloan

• Decision Date: 14 April 1924
• Docket Number: 24195
• Citation: 99 So. 568,135 Miss. 597
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, W. O. W., v. SLOAN. [*]

99 So. 568

135 Miss. 597

SOVEREIGN CAMP, W. O. W., v. SLOAN. ^[*]

No. 24195

Supreme Court of Mississippi

April 14, 1924

Division A

January 1, 1920

1. APPEAL AND ERROR. Bill of exceptions will not be stricken for clerical error in name of appellant.

A clerical error in the name of the appellant in a bill of exceptions, which could and did not mislead the appellee, is harmless and presents no ground for striking the bill of exceptions from the record.

2. APPEAL AND ERROR. Bill of exceptions sworn to by attorney representing tendering party receivable in lieu of transcript, where trial judge and reporter both deceased.

Where the stenographer who took down the evidence and the judge who tried the case both died after notice had been served on the stenographer to transcribe his notes of the evidence but before the transcript had been made, a bill of exceptions sworn to by the attorney who represents the party tendering the bill of exceptions may be received as a substitute for the stenographer's transcript. Section 796, Code of 1906; section 580, Hemingway's Code; chapter 145, Laws of 1920; section 585, Hemingway's Supplement 1921.

3. APPEAL AND ERROR. Appellate court can only consider correctness of sworn bill of exceptions tendered by attorney for tendering party when cause submitted on merits.

The Supreme court cannot determine the correctness of a bill of exceptions sworn to by the attorney of the party tendering it on motion of the appellee to strike it from the record, but can do so only when the case is considered by the court on its merits, up to which time both the appellee and the appellant may continue to file affidavits touching the correctness thereof. Section 796, Code of 1906; section 580 Hemingway's Code.

HON THOS. B. CARROLL, Judge.

APPEAL from circuit court of Lowndes county, HON. THOS. B. CARROLL Judge.

Action by Mrs. Mollie Sloan against Sovereign Camp, Woodmen of the World. From a judgment for plaintiff, defendant appeals. On motion to strike the bill of exceptions. Motion overruled.

The following are the grounds set forth in the motion to strike the bill of exceptions, as called for by the opinion of Chief Justice:

"First. That the style of the suit in the court below was Mrs. Mollie A. Sloan v. Sovereign Camp of the Woodmen of the World, and the said Mrs. Mollie A. Sloan obtained a judgment against the Sovereign Camp of the Woodmen of the World, the appeal was taken in the name and by giving bond of the Sovereign Camp of the Woodmen of the World, the attorneys for appellant, in giving notice to the official stenographer, had as a caption for his notice "Mrs. Mollie A. Sloan v. Supreme Lodge Woodmen of the World," and the bill of exceptions filed in this court is the bill of exceptions of Supreme Lodge Woodmen of the World, Appellant, v. Mrs. Mollie A. Sloan Appellee, and there was no such case tried in the circuit court of Lowndes county as Supreme Lodge Woodmen of the World v. Mrs. Mollie A. Sloan.

"Second. That the testimony in this cause in the trial in the circuit court was taken down by an official stenographer; that since the trial, and before the transcribing of his notes by the official stenographer, he died; that the circuit judge who tried the cause also died, without having signed the bill of exceptions; and that the law does not provide for the evidence taken at such trial to be set out in a bill of exceptions to be prepared in the manner that it has been prepared in this cause, where both the judge and the official stenographer have died.

"Third. Because the evidence, as set out in the bill of exceptions and filed in this court, purporting to give the testimony of W. H. Duncan, Dr. J. W. Lipscomb, Dr. C. E. Lehmberg, and Dr. W. C. Brewer, shows on its face that it is so incomplete that it is not a correct bill of exceptions, and that the testimony of these witnesses is not before the court.

"Fourth. Because three witnesses who testified for the appellee in the circuit court, to-wit, Mrs. Mollie A. Sloan, the appellee herself, Miss Willie B. Burgess, and W. H. Foreman, are not even mentioned by name in the bill of exceptions, and not a word of their testimony given, although they gave testimony material to the issue involved. The appellee files with this motion the affidavit of herself, Mrs. Mollie A. Sloan, and also the affidavit of H. G. Phillips, to the effect that the testimony set out in the bill of exceptions is incorrect and incomplete as to the witnesses mentioned therein, and, further, that three witnesses who testified for appellee in the court below, to-wit, Mrs. Mollie A. Sloan, appellee herself, Willie E. Burgess, and W. H. Foreman, are not even mentioned at all in the bill of exceptions, and none of their testimony even pretended to be set out, and appellee asks that these affidavits be considered as a part of this motion."

Motion overruled.

J. F. Frierson, for appellant.

The motion claims that the law does not provide for evidence taken down at trial to be set out in the bill of exceptions to be prepared in the manner that it has been prepared in this cause, where both the judge and the official stenographer had died. But see sec. 585, Hem. Code, ch. 145, Laws of 1920; Sec. 580, Hem. Code (sec. 796, Code of 1906).

In this preparation of the bill of exceptions we have tried to follow these two statutes. In the evidence set out in the bill of exceptions we endeavored to give it as accurately as we could. The section of the Code last quoted provides how any correction of errors of the bill of exceptions may be made as follows: "But in such case, the appellee shall file in the supreme court an affidavit of himself or his attorney in the court below, that the bill of exceptions is not correct, stating particularly wherein it is not correct. . . ."

The motion of the appellee should be overruled and the appellant should be permitted to amend the caption in the notice to the stenographer and the caption of the bill of exceptions by changing the words from "Supreme Lodge Woodmen of the World" to "Sovereign Camp of the Woodmen of the World" and that any corrections which are desired to be made shall be made as outlined and provided for in the Code by sections 580 and 585, Hemingway's Code.

Owen & Garnett, for appellee.

The right of appeal, as we understand it, is statutory. The appellant had its day in court when its defense was presented to the court and jury in ...