Spitchley v. Covington
| Decision Date | 22 November 1937 |
| Docket Number | 32902 |
| Citation | 177 So. 31,181 Miss. 678 |
| Court | Mississippi Supreme Court |
| Parties | SPITCHLEY v. COVINGTON et al |
Suggestion Of Error Overruled February 28, 1938.
APPEAL from the chancery court of Copiah county HON. V. J. STRICKER Chancellor.
Suit between E. W. Spitchley and R. L. Covington and others. From the decree rendered E. W. Spitchley appealed, and the appellees R. L. Covington and others, moved to strike the stenographer's notes of the evidence taken before a master in chancery, to strike original exhibits sent up to the Supreme Court, and to require an additional appeal bond. Motion to strike the stenographer's notes sustained, with leave to file a corrected transcript, motion to strike original exhibits from record sustained, and objection to appeal bond overruled.
Motion to strike stenographer's notes sustained. Motion to strike from record original exhibits sustained. Objection to appeal bond overruled.
W. S. Henley and Webster Millsaps, both of Hazlehurst, for appellee on motion.
No effort was made to comply with the provisions of Sections 724 to 726 inclusive providing for the making of the stenographic notes a part of the record on appeal.
In the case of Mayflower Mills v. Breland, 149 So, 787, the Supreme Court of Mississippi held that a notice to the stenographer to transcribe the notes of evidence given prior to the court passing on and disposing of a motion for a new trial was ineffectual and constituted no notice.
No bill of exceptions was taken. The appellant having failed to perfect his record on appeal and make the. stenographic notes a part of the record on appeal in the manner provided by the statute under the chapter on court reporting, the only other way that we know that he could make the transcript of the evidence a part of the record on appeal would be to incorporate it in a bill of exceptions to the decree of the court below, and have the judge settle the bill of exceptions which would include the approval of the transcript of the stenographic notes of the evidence.
The exceptions filed do not contain any statement of the evidence, and furnishes no basis for an inclusion of the transcript of the evidence in the record on appeal to this court.
The transcript of the evidence was not made a part of the record in the court below by either the master or the chancellor.
The purported amendment to the master's report is ineffectual.
The master's determination of the matter referred to him constituted a valid adjudication of the same, and his report which he had made therein could not be set aside. vacated, or modified by him, after it had been entered any more than the Chancery Court below could enter a decree amending its judgment while this case was on appeal to the Supreme Court.
Beard v. McLain, 78 So. 184; Adams v. Evans, 19 So. 834; Evans v. King-Peoples Auto Co., 99, So. 758.
An examination of the transcript which appears on appeal discloses that it has never been marked filed by the clerk in the court below. Said transcript should be stricken because it is incomplete.
Benjamin v. Virginia Carolina Chemical Co., 87 So. 895; Planters Oil Mill v. Y. & M. V. R. R. Co., 119 So. 168, 117 So 242.
The original exhibits are not properly before the Supreme Court.
Rule 28 of the Supreme Court; Planters Oil Mill v. Y. & M. V. R R. Co., 119 So. 169.
We submit that the court below was without jurisdiction to order the original records considered by the Supreme Court in lieu of copies without an adjudication by the court below that it was necessary or proper that the Supreme Court should consider the originals.
In view of the irregularity as to the oath of the sureties which was not taken before the clerk, but before a notary, and the fact that Mr. Cato appears to be repudiating the conditions under which he signed the bond, we submit that a new bond should be required on which there is at least one good surety.
L. F. Easterling, of Jackson, for appellants on motion.
Counsel for the appellees takes the position, as we understand the motion and brief thereunder, that the transcript of the evidence taken before the master should be stricken because the record does not show notice was given to the stenographer, and because the amendment to the master's report reporting the evidence to the court does not appear in the record to have been signed by the master. It seems obvious that, inasmuch as the master is required to report the evidence upon which he made his findings, when the report is filed with the court the evidence taken before the master and certified by him to the court becomes in the nature of depositions. It certainly seems that it would be requiring a futile thing, after the testimony had been transcribed and used in the brief and argument before the master and the court, and the court had acted thereon, to require notice to be given to do that which had already been done.
Griffith's Chancery Practice, sections 603-607; Robertson v. Nicholson, 120 So. 822, 153 Miss. 545; Cooper v. Martin, 102 So. 851.
The court will observe from the exhibits to the affidavit filed in this cause that no objections were raised by counsel for appellees in the court below as to the correctness of the evidence, and that counsel for appellees were advised of every step in the matter. No attention was brought to the court below or to counsel of the fact, if such be a fact, that Judge Cox did not sign the supplemental report. Had this matter been presented, it could and would have been cured. It was evidently an oversight. Possibly the clerk merely copied a copy of the supplemental report, instead of the original. We do not know. The filing of this motion is the first time we learned that Mr. Cox did not actually sign the supplemental report, if that be a fact. From the affidavit of the attorney for the appellants, it will appear that the entire record was brought to Jackson for argument and presentation to Judge Stricker on exceptions to the master's report. It therefore can hardly be questioned that Judge Stricker, in passing on the report, passed on the entire report and the evidence in the case.
Counsel also states that the transcript of evidence does not appear to have been filed. Our position is that under the supplemental report of the master it was made a part of the record, and the report of the master and the supplemental report are shown to have been flied by the record.
Railroad Co. v. Chambers, 103 Miss. 400; Brown v. Sutton, 121 So. 835, 158 Miss. 78.
In my entire practice at the bar I cannot recall a single case where any objection was ever raised to the master reporting the evidence upon which he based his decision. I can recall no case where any exception was ever made to a record for incorporating in the record the master's report, including the evidence. That in Mississippi the practice has ever been that the master send up the evidence upon which he makes his findings of law and fact cannot be better proved than by reference to Judge Griffith's splendid work on "Chancery Practice in Mississippi,'' sec. 604.
21 C. J. 618, note 87; Bell v. Gordon, 55 Miss. 50.
In any case referred to a master in a court of equity the master may either employ a stenographer or take the testimony himself. Testimony so taken and reported to the court becomes a part of the record, as it is necessary under the practice to make a finding of the facts; and in case of objection based on such finding the evidence itself is a part of the report of the master and a part of the record in the case.
Adams v. Fry, 29 Fla. 318, 10 So. 559; 4 C. J., page 381, footnote 60 (c), page 383, page 187, footnote 67 (b), pages 156 and 157, footnote 37 (a); Reams v. McHargue, 111 Ky. 163, 63 S.W. 437, 23 Ky. L. 540; Stewart v. Mathews, 19 Fla. 752; Harrah v. State, 38 Ind.App. 495, 76 N.E. 443, 77 N.E. 747; Duckworth v. Duckworth, 144 N.C. 620, 57 S.E. 396; Midland R. Co. v. Trissal, 30 Ind. A. 77, 65 N.E. 543.
From the affidavit of the attorney for appellants, it will be seen that request was made on Mr. W. H. Cox, the master, to send up all the evidence in the case. Counsel for appellees was advised of this fact. The master made no objection thereto and amended his report, and the record shows that the original and amended reports were filed at the same time.
We take the position that the report of the master with the exceptions and the amended report, as shown by the record, were filed at the same time, and that under the general practice it was the duty of the master to return the evidence in order that the court might determine the correctness vel non of his findings of fact and of law.
Appellees cannot go into the trial before the chancellor, take their chances, and then object that the master had not signed this report. This could and would have been remedied, if this had been brought to the attention of the court.
It is contended by counsel that the court had no power to authorize the sending up of the original exhibits. As stated in my affidavit in this cause, this order to be presented to Judge Stricker was prepared by the writer hereof and Mr. Millsaps, and the writer understood that it was agreed that these original exhibits might be sent up.
We respectfully call the court's attention to the fact that the decree appointing the master expressly authorized the master to take the evidence in this cause and to receive the evidence on the issues therein, and to submit a report of his findings and recommendations to the court. And the cause was set for hearing on the master's report in vacation.
About the only important exhibit sent up under the order of the chancellor was the bank record showing the...
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