Buchanan v. Sunflower Compress Co.

84 So. 691 | Miss. | 1920

Smith, C. J.,

delivered the opinion of the court.

This cause comes on to be heard on a motion by the appellee to strike the stenographer’s transcript of the evidence from the record. This transcript has not been approved either by the trial judge or by agreement of counsel, but there is no claim on the part of the appellee that the transcript is incorrect in any material particular; the ground of the motion being that it does not appear from the record that the notice required by the statute (Hemingway’s Code, section 582) was given the stenographer to transcribe his notes of the evidence. The statute required the notice to be “handed to the stenographer personally, or mailed to him at his usual place of abode,” and that a copy of this notice shall be filed with the clerk of the court in which the case was tried “with a statement as to how the notice was served.” There appears in the record a copy of a letter from counsel for the appellant addressed to the stenographer requesting him to transcribe and file his notes of the evidence, but there is not appended toi it, and when this motion was filed the record did not contain a statement as to how this notice was served. After the filing of this motion to strike the stenographer’s notes from the record counsel for the appellant filed with the clerk of the court below a statement setting forth that the letter to the stenographer hereinbefore referred to was placed in an envelope, properly addressed to H. B. Levy, court reporter, at Lexington, Holmes county, Miss., his home, stamped with a two-cent postage stamp, and duly mailed in the United States post office at Indianola on the said 31st day of October, 3919.

The date of the mailing of this notice was within the time required for the giving- thereof, but this time had long since expired when the statement showing how it was served was filed.

The statute does not require the notice to the stenographer to be filed with the clerk of the trial court within thirty days after the adjournment of court. Consequently it can be filed at any time thereafter. N. O. & N. E. R. R. Co. v. Catts, 109 Miss. 340, 68 So. 483. If the notice can be filed after the expiration of the thirty days, it necessarily follows that the statement setting forth the manner of its service can also be filed thereafter, and, since this statement has now been filed, the motion will be overruled.

Overruled.