Mississippi Central R. R. v. Chambers

60 So. 562 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

Appellee has filed a motion requesting us to strike the transcript of the stenographer’s notes from the record for several alleged reasons. The motion contains no allegation that this transcript is incorrect in any particular. According to counsel for appellee, it does not appear that notice was given to the stenographer to transcribe the notes of the evidence taken by him at the trial, and he contends, consequently, that the motion does not come within the provisions of paragraph “d” of section .797 of the Code of 1906, as amended by chapter 111 of the Laws of 1910, page 94, which is as follows: “Provided notice is given to the stenographer by the appellant or his counsel within thirty days after the conclusion of the term of court no testimony or transcript of his notes shall be stricken from the record by the supreme court for any reason unless it be shown that such notes are incorrect in some particular, and then only in cases where such notes have never been signed by the trial judge, nor been agreed on by the parties, nor become a part of the record by operation of law.”

The only purpose of this statute was to limit the power of this court to strike a transcript of. the stenographer’s notes from the record, when such transcript does not appear to be incorrect in some material particular. Carrying out the spirit of this statute, we will not simply obey the strict letter thereof, but will refuse to strike such a transcript from the record for any reason, when it is not shown to be incorrect in some material particular, unless to refuse so to do would be manifestly unjust to a party affected thereby. If the transcript of the notes is correct, it is immaterial how the stenographer came to-make it; and it is difficult to conceive how any party could have any just ground of complaint because it is, if correct, incorporated in the record. The main purpose of the restrictions thrown around the making of the transcript of the stenographer’s notes a part of the record is to insure the correctness thereof, and when, as filed, a transcript is correct, the desired end has been reached. The only provision made by chapter 111 of the Laws of 1910 for keeping a record of the notice served on the stenographer to transcribe his notes is that a copy of such notice shall be filed with the clerk, and the fact that, papers are frequently lost from the files of a cause admonishes us to pause before holding that a correct transcript must be stricken from the record because it does not appear that this notice was given.

But it is said by counsel that it does not appear that 'this transcript was ever filed in the court below. An examination of the record discloses that it contains no copy of an indorsement by the clerk on this transcript that it was, in fact, filed; but it is wholly unnecessary for this fact to be disclosed by the record. Under rule 2 of this court (59 South. .VII), it is unnecessary for a clerk, in making up a transcript for this court, to include therein copies of the indorsement, “Filed,” etc., placed by bim on any papers and records at the time they are deposited with him. Where, as here, the clerk has certified that the transcript made by him is “a true and correct transcript of the record and papers,” etc., in the ease, it will be presumed that everything therein contained has become regularly a part of the record, until the contrary is made to appear.

Overruled.