51 So. 274 | Miss. | 1909
Lead Opinion
delivered the (first) opinion of the court, sustaining the motion.
This is a motion to strike out the stenographer’s notes because one of the firms representing the defendant below, Ford, White & Ford, was not notified in any way by the clerk, as required by Code 1906, § 797, that said notes had been received by the clerk and were on file. There is a conflict of evidence between the deputy circuit clerk, on the one hand, and Mr. Ira Ford and Dr. W. R. Kell, the family physician of Ira Ford, on the other hand. The statute makes it the imperative duty of the circuit clerk to notify each attorney or firm. The language of the statute is as follows: “As soon as the stenographer’s notes, transcribed, shall be first received by the clerk of the circuit court, he shall notify each attorney, or firm, interested in such case, by mail or in person, that said notes were received and are on file.” In this case it appears that the firm of Doty^ & Elmer were first employed by the appellee corporation, and filed certain pleas, and that later some members of this corporation employed another firm, Ford, White & Ford, to represent them in the case, and they filed certain other pleas.
The motion is sustained, and the notes striclcen out.
Dissenting Opinion
delivered the following opinion, dissenting from the order sustaining the motion.
I think the question of notice to counsel is wholly immaterial on the facts in this record, for the reason that the stenographer’s notes were in fact examined and approved by Mr. Doty, of the firm of Doty & Elmer, and of counsel for appellee1. On February 3d, within the time required by law, the transcribed notes were handed to Mr. Doty by Mr. E. M. Barber, counsel for appellant. After examining same, the notes were by both of these gentlemen approved; said approval being in the following language: “These notes approved on this 3d day of February, 1909. E. M. Barber, Attorney for Plaintiff. Doty & Elmer, Attorneys for Defendant.” •
In the case at bar appellee, through his counsel, not only examined the notes, but actually approved same. When the notes are in fact examined and approved by a party litigant, either in person or by his attorney, the benefit intended to be conferred by the notice has been obtained. The acts of an
It follows, therefore, that I am of the opinion that this motion ought to be overruled.,
After the delivery of the foregoing opinion and the entry of the order striking the stenographer’s report of the evidence (notes) from the transcript, Mayes •& Longstreei, for appellant, filed an elaborate suggestion of error, which was sustained, as shown by the following opinion.
delivered the opinion of the court in response to the suggestion of error.
Appellee was represented in the court below by two firms of attorneys, to wit, Messrs. Doty & Elmer and Messrs. Eord, White & Eord. There is a conflict in the evidence as to whether any member of the latter firm was notified, as required by section 797 of the Code, that the stenographer’s notes had been filed with the clerk.
The question of notice to the firm of Eord, White & Eord is wholly immaterial, for the reason that on Eebruary 3d, within the time required by law, the transcribed notes were handed to Mr. Doty, of the firm of' Doty & Elmer, by Mr. E. M. Barber, counsel for appellant, and after an examination of same the notes were by both of these gentlemen approved. This approval is in the following language: “These notes approved on this 3d day of Eebruary, 1909. [Signed] E. M. Barber, Attorney for Plaintiff. Doty & Elmer, Attorneys for Defendant.” , In Hines v. Shumaker, ante, 477, 50 South, 564, this court, speaking through Wilbourn, Special Judge, said: “But, conceding that the notice required by the statute was not given, we are further of the opinion that the question of notice or no notice Was rendered immaterial by the fact that after the transcribed notes were filed by the stenographer, and examined and approved by appellants, the leading counsel for appellee
In the case at bar appellee, through its counsel, not only examined the notes, but actually approved same. When the notes are in fact examined and approved by a party litigant, either in person or by his attorney, the benefit intended to be conferred by the notice has been obtained. Tbe acts of an attorney, so far as the procedure in a case is concerned, are always binding on his client.
The suggestion of error is sustained, the judgment heretofore entered, striking the stenographer’s notes from the files, is set aside, and the motion to strike said notes from the files is overruled.