State v. Spengler

• Decision Date: 26 October 1896
• Citation: 20 So. 879,74 Miss. 129
• Court: Mississippi Supreme Court
• Parties: STATE, USE, ETC., v. H. SPENGLER, SR., ET AL

20 So. 879

74 Miss. 129

STATE, USE, ETC., v. H. SPENGLER, SR., ET AL

Supreme Court of Mississippi

October 26, 1896

October 1896

FROM the circuit court first district of Hinds county HON. ROBERT POWELL, Judge.

On motion. The appellees moved the court to strike from the record the stenographer's notes, because the same were not authenticated by the judge of the court below, and because, as was claimed, there was no bill of exceptions. The facts involved in the motion, together with the state of the record, are shown by the opinion of the court.

Motion denied.

Williamson & Potter, for the motion.

Our contention is, that under the act of 1896 a bill of exceptions is still necessary in order to bring the stenographer's notes before this court, and that, too whether the notes, as such, be signed by the judge or agreed to be correct by the parties or their attorneys. The law of 1896 does not repeal the other code provisions as to bills of exceptions, but amends § 736. Sections 733, 734 and 735 (code 1892) remain in full force. The law of 1896 provides that "the preceding provisions (meaning §§ 733-735, code 1892) as to the time when bills of exceptions shall be presented and signed, shall not apply to cases in which the evidence and proceedings are noted down by the stenographer, which is equivalent to declaring that said sections shall apply except as to the time when bills shall be presented and signed. The code provisions and the act are harmonious under this view; otherwise they are not in accord.

The act of 1896, considered independently of the code sections (which, we think, however, should not be done) provides throughout for bills of exceptions. It speaks of bills of exceptions in cases in which the evidence and proceedings are noted down by a stenographer being sent by mail or express to the trial judge, etc., showing that it was not in contemplation to dispense with his signing bills of exceptions.

W Calvin Wells opposed the motion.

The reporter finds no brief against the motion on file.

Argued orally by W. H. Potter and C. M. Williamson, for the motion and by W. Calvin Wells, contra.

OPINION

COOPER, C. J.

The cause stands upon a motion by the appellees to strike from the record a transcript of the stenographer's notes of the proceedings and evidence in the court below, because the same is not made a part of the record by a bill of exceptions signed by the trial judge. There is on the transcript of the stenographer's notes an agreement in writing subscribed by counsel of both parties that the notes are correct. The transcript consists of matter of record proper, and of the stenographer's notes. The notes have neither the caption nor conclusion of a bill of exceptions; the style of the cause is given, and then follows the statement that "the following is the testimony in this case, " followed by the testimony of the witnesses, which is interspersed with the rulings of the court upon the evidence offered by the plaintiff, and concludes with the following statement: "The plaintiff rests. The defense here moves the court to exclude the evidence of the plaintiff, and the motion is sustained, and the plaintiff excepts." The plaintiff made a motion for a new trial, which was overruled. No general bill of exceptions was taken to the action of the court on this motion.

Bills of exceptions, under our practice, are of two kinds:

1. Special, where only a ruling of the court upon one specific subject is sought to be reviewed, and there may be numerous special bills in one case, or several special exceptions may be included in one bill, but such bills must be taken before the jury retires from the box. Code, § 735; Lindsey v. Henderson , 27 Miss. 502; Jackson v. The State , 56 Miss. 311.

2. General bills taken to the action of the court on a motion for a new trial, by which the whole case is brought into review, or so much thereof as the party making the motion may desire to bring to the attention of the court, and these bills may be taken during the term, or within ten days, or within sixty days (now ninety days, Acts of 1896, p. 91), if the judge, in his discretion, shall extend the time. Code, § 735.

Prior to the code of 1892, the statute governing the reservation of general bills of exceptions provided that "when a motion for a new trial shall be granted, or refused, either party may except to the decisions of the court, and may reduce to writing the reasons offered for said new trial, together with the substance of the evidence in the case, and also the decision of the court on said motion; and it shall be the duty of the judge before whom such motion is made, to allow and sign the same; and such bill of exceptions shall be a part of the record in the cause, and it may embrace the judgment and motion and other matters of record, " etc. Under this statute, it was held that this court could not review the action of the lower court overruling a motion for a new trial, unless exception was taken thereto in the lower court. Scott v. The State , 31 Miss. 473; Railroad Co. v. Chastine , 54 Miss. 503; Bourland v. Supervisors , 60 Miss. 996.

These decisions rested upon the language of the statute, which conferred the right that either party " may except to the decisions of the court , and may, " etc., and it was therefore decided that unless he did except in the lower court he could not invoke the right to review the action of the court on the motion for a new trial. But in the codification of 1892 the italicized words were omitted from the statute for the manifest purpose of dispensing with the mere formality of "excepting" in order to obtain the benefit of the statute. The motion for a new trial and the judgment of the court thereon are matters of record, and need no bill of exceptions to make them such. Puckett v. Graves , 6 S. & M. 384; Railroad Co. v. Allbritton , 38 Miss. 242.

In Railroad Co. v. Chastine , 54 Miss. we held that, while in conformity with prior decisions we could not review the action of the court upon the motion for a new trial unless exceptions had been taken thereto in the trial court, we would yet look to the evidence as authenticated by the judge in such defective bill, to test the correctness of the rulings of the court on exceptions taken during the...