New Orleans & N. E. R. v. Catts, 68 So. 483

New Orleans & N. E. R. v. Catts

68 So. 483 | Miss. | 1915

Lead Opinion

Stevens, J.

delivered the opinion of the court.

The only question of interest presented by this motion is whether, under section 797 (a), chapter 111, Laws 1910, a person desiring to appeal is required to file with the clerk of the court a copy of the notice served on the stenographer “within thirty days of the adjournment of court.” The statute in question provides that notice in writing shall be given and served on the stenographer within the thirty days, and also provides:

“In either case the attorney making the request shall file with the clerk of the court a copy of the notice with a statement as to how the notice was served.”

The record in this case shows that appellant did “notify the stenographer in writing within thirty days of the adjournment of court of the fact that a copy of the notes” was desired, but a copy of this notice was not filed with the clerk until long after the expiration of the thirty days. The statute does not, in express terms,' limit the time in which “a copy of the notice with a statement as to how the notice was served” shall be filed with the clerk, and the filing beyond thirty days of the adjournment of court is sufficient. The statute gives the appellant, in any case, until midnight of the thirtieth' day to serve the notice on the stenographer, and in fil*344ing a copy lie is also required to file “a statement of how the notice was served.” This statement must, of necessity, be prepared after the notice has in fact been served; and if the appellant elects to wait or is prevented from serving the notice until the close of the last day allowed, then the statement could not be filed within the thirty days. This entire statute in reference to stenographer’s notes should be liberally construed in aid of litigants prosecuting in good faith appeals to this court, and in effectuating the manifest scheme and purpose of the act to enable the supreme court to' exercise its constitutional appellate jurisdiction.

The motion is therefore overruled.

Concurrence Opinion

Smith, C. J.

(concurring).

I do not think the provision of the statute here in question is one which calls for the application of any rule of construction, it being plain, unambiguous, and easily understood; and, in my judgment, that it does not require the notice served on the stenographer to be filed with the clerk “within thirty days of the adjournment of court” is not open to even the suggestion of a doubt.