Young v. Alexander

• Decision Date: 14 June 1920
• Docket Number: 21300
• Court: Mississippi Supreme Court
• Parties: YOUNG v. ALEXANDER et al

84 So. 697

122 Miss. 643

YOUNG v. ALEXANDER et al

No. 21300

Supreme Court of Mississippi

June 14, 1920

March 1920

1. APPEAL AND ERROR. Notice to stenographer to transcribe his notes may be given thirty days after ruling on motion for new trial.

When motion for a new trial is taken under advisement by the trial judge to be decided by him in vacation under the provisions of chapter 158, Laws of 1912 (section 570, Hemingway's Code), the notice, required by paragraph "a," chapter 111, Laws of 1910 (section 582, Hemingway's Code), to be given the official stenographer by the person desiring to appeal the case, that a copy of his notes is desired need not be given within thirty days after the adjournment of the court, but may be given within thirty days after an order entered by the trial judge in vacation disposing of the motion for a new trial.

2. APPEAL AND ERROR. Motion to strike stenographer's notes from record, held insufficient.

Appellee's motion to strike stenographer's notes from the record because the transcript of the evidence had never been signed by trial judge nor been agreed upon by the parties, nor become a part of the record by operation of law, alleging that "said notes are incorrect in a material particular," not pointed out in the motion or appellee's brief, does not authorize supreme court to determine whether any defect is material, in view of Laws 1910, chapter 111, par. "d" (Hemingway's Code section 585).

HON. H. H. ELMORE, Judge.

APPEAL from the circuit court of Humphreys county, HON. H. H. ELMORE, Judge.

Action between J. R. Young and H. H. Alexander and others. Judgment for the latter, and the former appeals. Appellee's Motion to strike stenographer's notes from the record overruled.

Motion overruled.

F. E. Everett and N.W. Sumrall, for appellant.

Cashin & Murphy, for appellees.

OPINION

SMITH, C. J.

This cause comes on to be heard on motion of the appellee to strike the stenographer's notes from the record. The first ground of the motion is that the stenographer was not notified within thirty days of adjournment of court that a copy of his notes was desired.

The judgment appealed from was rendered at a term of the court below which terminated upon the 3d day of May, 1919. Prior to the adjournment of the court a motion for a new trial was filed by the appellant, and an order entered upon the agreement of counsel that this motion be "taken under advisement to be decided in vacation." On the 3d day of June an order was made by the circuit judge, overruling the motion. Seven days thereafter counsel for the appellant notified the stenographer in writing that a copy of his notes was desired, and a copy of this notice, together with a statement of the manner of its service, was filed with the clerk of the court.

Section 2, chapter 111, Laws of 1910 (section 582, Hemingway's Code), provides that:

"In all cases in which the evidence is noted by the official stenographer, any person desiring to appeal the case shall notify the stenographer in writing within thirty days of the adjournment of court of the fact that a copy of the notes is desired."

At the time this statute was enacted the circuit court, or rather the judge thereof, was without power to render judgment in vacation, but chapter 158, Laws of 1912 (section 570, Hemingway's Code), provides that:

"A judge of any circuit court may deliver opinions and render, make and sign judgments in vacation, as in term time, in cases taken under advisement by him at a term of the court; and by consent of the parties, or of their attorneys of record, he may try cases in vacation, as in term time, and make and enter judgments therein in vacation. All judgments and all orders which a judge of any such court may render or make in vacation, shall be signed by him and thereupon be entered and recorded on the minute book of the court in which the case or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had and taken...