117 So. 242 | Miss. | 1928
It will be observed from the above statements that the exhibits were the records and papers introduced in evidence, and constituted a part of the record of the circuit court.
Rule 28, of this court,
Under rule 2 of this court,
The exhibits here involved constitute a part of the bill of exceptions provided for by sections 595 to 600, Hemingway's 1927 Code. In section 599, Hemingway's 1927 Code, Laws of 1920, c. 145, among other things, it is provided that: *816
"If the original or the copy of the stenographer's notes shall be lost or destroyed, or defaced in any manner, or if the stenographer should die, resign or be unable to transcribe his notes, and furnish a typewritten copy of his notes, sixty days additional time shall be allowed for the preparation of a bill of exceptions, or as the case may be, another copy of the transcribed notes. In case a copy of the transcribed notes cannot be furnished, a bill of exceptions may be prepared within the time hereinafter stated, just as in cases where no stenographer takes down the evidence," etc.
Section 3349, Hemingway's 1927 Code, section 4790, Code of 1906, provides that the stenographer shall take, under the control of the judge, stenographic notes of all the oral evidence and proceedings, except arguments of counsel, in each case, civil and criminal, tried thereupon upon an issue of facts, and of any other matter or in any other case that the judge may especially direct. He shall carefully note the order in which the evidence, both oral and written, is introduced and by whom introduced, giving name of each witness, and identifying each deposition, exhibit, map, or other item of evidence or matter of proceeding by words or figures of description, and shall carefully note all objections of counsel, rulings of the court, and exceptions of counsel, during the trial, in the order in which the same occur. And, upon demand of either party to the case, he shall, within twenty days from the conclusion of the trial thereof, or from the time of the demand, neatly write out in full hand, or typewriting, a complete copy of his stenographic notes taken therein, with a caption showing the style of the case, its number, the court in which tried, etc., and file same in office of clerk of court in which case was tried.
It will be observed from these sections and rules of this court above stated that the circuit judge, or chancellor, is authorized to order the original to be sent up to this court, when in their opinion, it is necessary to do *817 so. It will be seen that it is the duty of the stenographer to copy all exhibits, and to mark and preserve them, and insert them in the notes at the proper places as directed by the rule. These notes, after being so made up, under the statute, are turned over to counsel for examination and suggestions for their correction, counsel on both sides having a number of days in which to make such suggestions, and, if they do not agree on the correctness of the notes, either as originally transcribed, or as corrected by suggestions, then the notes are presented to the trial judge, who determines their correctness, and who makes such corrections as he finds to be necessary to present a real record of the case tried in his court.
In Benjamin v. Virginia-Carolina Chemical Co., of Delaware,
In Lumber Mineral Co. v. King,
In Brooks v. Gentry,
Taking all these rules of court above set out, and decisions, together, we think it was peculiarly a case to be *818 submitted to the trial judge, and that if, in fact, the stenographer could not transcribe the exhibits, the judge could then determine what the contents of the exhibits were, either from his own vision and perception, or by taking appropriate proof, and is was his function to perfect the record so as to show the transactions and the evidence introduced. It is a little difficult to see why the exhibits should be sent here for this court to decipher, if they are in fact, illegible. The trial court had ample machinery and power to determine what took place in that court. It is certainly much better equipped to perform that function, even if this court had the power in any case to determine that question.
We pretermit the question as to whether, under any circumstances, this court would have the power to have the original exhibits sent up in order to perfect the record made in the court below; but, certainly, in our opinion, this is not a case of our exercising such power, even if we have it. No application was presented to the trial court, and the bill of exceptions is incomplete. It was the duty of the appellant, if he desired to perfect the record, to pursue the method pointed out by statute. The proper place was in the trial court, or before the trial judge.
The motion will therefore be overruled.
Motion overruled.