99 So. 568 | Miss. | 1924
delivered the opinion of the court.
This is an appeal from a judgment against the appellant on an insurance policy issued by it. The evidence was taken down by an official court stenographer, who died after the trial of the case and before transcribing his notes of the evidence. Before a bill of exceptions could be prepared and tendered to the circuit judge as provided by chapter 145, Laws of 1920, the circuit judge also died, because of which a bill of exceptions was prepared- as in cases where no stenographer takes down the evidence, sworn to by counsel for the appellant, and filed with the papers in the case. The motion rests upon four grounds, specifically set forth therein, and which the reporter will set out in full.
No question can here arise as to the sufficiency of the notice given the stenographer to transcribe his notes, for the reason that while the caption thereto erroneously styles the case as Mrs. Mollie Sloan v. Supreme Lodge, Woodmen of the World, the case in the body of the notice is correctly styled as Mrs. Mollie Sloan v. Sovereign Camp, Woodmen of the World. The question does arise, however, on the bill of exceptions prepared and sworn
The filing of a bill of exceptions prepared “as in cases where no stenographer takes down the evidence” sworn to by the attorney of the party taking the appeal is authorized by paragraph D of chapter 145, Laws of 1920, by which section 797, Code of 1906, Hemingway’s Code, sections 581 to 585, inclusive, is, amended; which paragraph also provides that — '“Proceedings shall be taken thereon similar to those provided in preceding section for cases in which the judge should be prevented from signing the bill of exceptions.”
The preceding section here referred to is section 796, Code of 1906, section 580, Hemingway’s Code, which specifically provides that — “If the appellee shall file in the supreme court an affidavit of himself or his attorney in the court below, that the bill of exceptions is not correct, stating particularly wherein it is not correct, he may file any affidavits than his own touching the matter, and the opposite party may do likewise up to the time of the call of the case for trial in the supreme court; and said court shall consider and determine, on submission of the case, both as to the truth of the bill of exceptions and the questions involved in what the court may determine to be the bill of exceptions.”
'We are therefore without power to determine the correctness of this bill of exceptions on this motion, and can do so only when the cause is submitted on its merits, up to which time both the appellee and the appellant may continue to file affidavits touching the correctness thereof.
Overruled.