Albin v. Louisville Railway Co.

114 Ky. 982 | Ky. Ct. App. | 1902

Opinion of the court by

CHIEF JUSTICE GUFFY —

Reversing.

The appellee, upon notice duly «executed, moved the circuit court of Jefferson county, common pleas division, for a judgment against the appellant for $222.70, based upon his liability as surety on a bond for cast in the suit of the Kansas City Land Company against the Louisville Railway Company. The substance of the defendant’s answer is a denial that the cost of the case had been duly taxed by the clerk of the court, or ¡that the amount was the sum of $222.70. It is further alleged that there is included in said taxation of costs the sum of $92, alleged to have been paid by plaintiff for a stenographic report of the evidence at the first trial of this case; that the stenographic transcript was not made by or in obedience to any order of the court; that it was made at the instance and for the accommodation and convenience of defendant in preparing its. bill of exceptions at its first trial; that it was needlessly incurred; and that no appeal could have been successfully prosecuted, and that the case was finally decided in favor of the railway company. The court sustained appellee’s demurrer to the answer, and rendered judgment for the amount claimed, and, appellant’s motion for a new trial having been overruled, he prosecutes this appeal.

It is insisted for appellant that, as there was no order of court directing the transcribing of the stenographic notes, the fee therefor, $92, was not legally taxable against the party plaintiff in the original suit; or, in other words, no judgment was ever rendered for that sum, though the same was included in the execution issued upon the judgment' rendered. Section 4639, Kentucky Statutes, reads as follows : ••'Upon any trial or proceeding in any civil case in said court or division, if either party to the suit, or their attorney, shall request the services of «aid reporter, or if, in the opinion of the presiding judge, the testimony should be preserved, the presiding judge shall direct such reporter to make a full report of the testimony heard therein, whereupon it shall be the duty of the reporter to take full stenographic notes of such testimony, and upon the motion of either party to the suit or proceeding, or their attorney, to cause a full and accurate transcript of the same to be made, which shall be filed among the papers to be used in making up the bill of exceptions to the court of appeals.” It is the contention of appellee that either party may apply to the stenographer for a transcript of the evidence, and ‘that the cost thereof shall be taxed as ordinary cost of the suit. The contention of appellant is that no charge for such transcript could be taxed as cost against him unless the same was ordered by the court to bo made out. It will be seen by an examination of the section, supra, that all the services as well as the appointment of the reporter shall be made by the court on motion or on his own motion. After the appointment of the reporter, it is his duty to take full stenographic notes of the testimony. It is also provided that upon motion of either party an accurate transcript of the testimony shall be made. If we carefully examine and analyze the section, we find that, if either party requests the services of a reporter, or if the judge is of the opinion that the testimony should be preserved, the reporter shall he directed, etc., whereupon it shall be the duty of the reporter to take full stenographic reports of the testimony; and then follow the words, “and upon the motion,” etc. Manifestly the motion is made to the court. The entire question of appointment of the reporter is under the control of the court, and it seems clear that the duties of the reporter, in the absence of a statute, should be controlled by the court. If we omit from the section all commencing with the word “whereupon” and ending with the word “testimony,” the section would still be complete. It would then in substance provide for the appointment of a stenographer, and what should be done, all of which must be ordered on motion— evidently on motion made to the court. The succeeding section (4630) seems to sustain the contention of appellant, for in said section it still more clearly appears that the entire question of making a transcript of the evidence is to be done by order of the court. After a careful consideration of the law, we are of opinion that under section 4639 the costs of a transcript of the stenographer’s notes can not be based as cost against the unsuccessful party, unless such transcript is ordered by the court to be made. It results from the foregoing that the court erred in sustaining the demurrer to appellant’s answer.

The judgment is reversed, and cause remanded, with direction to overrule the demurrer, and for proceedings consistent herewith.