Opinion
No. 33518.
January 23, 1939.
1. EXCEPTIONS, BILL OF.
Where court stenographer died without having transcribed notes of evidence and court granted two additional 60-day periods to file bill of exceptions, order granting second extension of time was void (Code 1930, sections 725, 729).
2. EXCEPTIONS, BILL OF.
Where order extending time for filing of bill of exceptions to July 12 was void, circuit judge's want of power to approve bill on July 12 was not waived by appellees because of their agreement that judge could approve bill at later date to be effective as if approved on July 12 (Code 1930, sections 725, 729).
3. APPEAL AND ERROR.
Statute providing that if notice has been given stenographer to transcribe and file evidence, his transcript shall not be stricken unless incorrect was inapplicable where court stenographer had died and a special bill of exceptions was prepared (Code 1930, sections 728, 729).
ON MERITS. (Division A. Feb. 20, 1939.) [186 So. 642. No. 33518.]1. APPEAL AND ERROR.
Where bill of exceptions setting forth the evidence was stricken, and reviewing court could not determine whether granting and refusing of instructions was prejudicial in absence of the evidence, judgment was affirmed.
2. APPEAL AND ERROR.
In order to obtain reversal, appellant must show both error in the judgment appealed from and prejudice depriving appellant of a substantial right.
APPEAL from the circuit court of Wayne county; HON. ARTHUR G. BUSBY, Judge.
F.B. Collins, of Laurel, for appellee on motion.
The motion to strike the bill of exceptions should be sustained: (1) Because the purported bill of exceptions is not a transcript of the stenographer's notes and therefore is a bill of exceptions and is regulated by statute and must be prepared and filed within the time allowed by the statute and according to the provisions of the statute; (2) It is the contention of appellee that the time allowed by statute for preparing and filing a bill of exceptions had expired before this bill of exceptions was prepared and presented to the circuit judge and, therefore, should be stricken from the record because it was prepared and filed out of time.
Van Burden v. State, 24 Miss. 512; Railroad Company v. Ragsdale, 51 Miss. 447; Allen v. Levy, 59 Miss. 613; Albrecht v. State, 62 Miss. 516; Chenault v. Adams Machine Co., 97 Miss. 487, 52 So. 189; Richmond v. Enochs, 67 So. 649; Sections 589, 725, 726, 727, 728 and 729, Code of 1930; Miss. Central R.R. Co. v. Chambers, 60 So. 562.
Perchance it might be contended by counsel, because a part of the transcribed notes, as he says, appear in the bill of exceptions, then that part of it should not be stricken, but to that we say that there is no certificate of the stenographer who took the notes that it is a transcript of the stenographer's notes, and, too, it was held in the case of Benjamin v. Virginia-Carolina Chemical Company, 126 Miss. 571, 87 So. 895, that where only a part of the official stenographer's notes are reported and omissions not supplied they will be stricken.
Wilbourn, Miller Wilbourn, of Meridian for appellees on motion.
The giving of notice to the stenographer or not is immaterial here, for the reason that the stenographer died without transcribing, certifying thereto, and filing the, or any, transcript of the notes taken by him of the evidence and proceedings on the trial. The notice was given before the lower court adjourned, and not within ten days after the adjournment, as the statute contemplates.
Mayflower Mills v. Breland, 149 So. 787, 168 Miss. 207.
The transcript of a portion of the testimony purportedly made by the stenographer, is not certified to by him, and is not a part of the purported bill of exceptions herein by reason of having been certified to and filed by him. Besides it only purports to be a part of the testimony on the trial in the court below. It therefore cannot be considered as a stenographer's transcript under Section 725 of Code of 1930 of Mississippi.
The bill of exceptions must stand or fall purely as a bill of exceptions, and unless authorized and presented in the manner and within the time prescribed by law it should be stricken.
Sections 589 and 729, Code of 1930.
The stenographer died on March 15, 1938. The judge allowed the sixty days called for by Section 729, Code 1930, for a bill of exceptions on March 18, 1938. This exhausted the judge's authority.
Allen v. Levy, 59 Miss. 613.
The purported bill of exceptions was not presented to the judge within the sixty days from March 18, 1938, nor until July 12, 1938. The circuit judge was without power to sign and thus validate the bill of exceptions where it was not presented to him within the sixty days.
Y. M.V.R.R. v. Dampear, 66 So. 814, 108 Miss. 451.
This is not a case where the Supreme Court can itself settle the bill of exceptions. We submit it has no such jurisdiction.
Geiselbreth v. Miss. Power Light Co., 166 Miss. 749, 147 So. 874.
It is neither the duty nor the right of the Supreme Court, which has only appellate jurisdiction, to adjudicate what happened in the lower court, and settle for that court what its record was. This is especially true here under the facts of this case.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant on motion.
We contend at the outset that in accordance with the statutes concerning appeals, and particularly sections 728 and 729 of the Code of 1930, with reference to transcripts and bills of exceptions, our appeal here has been properly taken.
We gave notice to the official court reporter in ample time. The time for the completion of his transcript of his notes did not expire until March 21, 1938. He died on March 15, 1938, and before the 21st of March we had asked for and received sixty days additional time, in accordance with Section 729 of the Code.
After finding that it was impossible to have these notes transcribed by another stenographer and within the additional sixty days granted by the circuit judge, appellant prepared its special bill of exceptions, and in accordance with the agreement of counsel it was signed as of July 12, 1938. The two orders of the circuit judge and the signing of the bill of exceptions itself are conclusive proof that a part of the bill of exceptions, to-wit, Exhibit 1 thereto, is the original of a part of the stenographer's official transcript of his notes.
As Section 728 of the Code says that if notice is given to the court reporter within ten days after the conclusion of the term of court — and our notice was not only given within ten days after the conclusion of the term of court, but was actually given before the adjournment of court — no court reporter's 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 material particular, and then only in cases where such notes have never been signed by the trial judge, nor been agreed upon by the parties, nor become a part of the record as provided by this chapter. We say, first, that the notice was given within the time allowed by law; second, that appellees have not said or attempted to say that these notes are incorrect; third, that they have been signed by the trial judge, as the bill of exceptions was signed by him; fourth, that they have been agreed on by the parties as shown on page 7 of the bill of exceptions; and fifth, that they have become a part of the record as provided in Section 729 of the Code, to-wit, because they have been made a part of the bill of exceptions.
We are firmly convinced that the matter was one within the discretion of the trial judge, and we will go further and say that if there was any fault in the preparation of this record or this bill of exceptions, the appeal should not be dismissed but should be heard on its merits because the State is involved, and as the court said in State v. Woodruff, 150 So. 760, 170 Miss. 744, if the State's counsel fails to take care of the State's interest in litigation and this becomes apparent to the court, the court should see that the public interests are protected.
The Highway Commission is the State as, in many cases, this court has held that it is a governmental subdivision engaged in carrying out governmental functions, and suit is maintainable under general statutory authorization to sue only for liability expressly granted by statute or necessarily implied.
Stewart v. Highway Commission, 148 So. 218, 166 Miss. 43; State Mineral Lease Commission v. Lawrence, 157 So. 897, 171 Miss. 442.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
It is our opinion that whatever the testimony in this case may have been the jury was given two different measures of damage by which to go, and that, therefore, they were so confused by the court's instructions that they could not bring in a proper verdict.
City of Higgins, 81 Miss. 376, 33 So. 1; Schlicht v. Clark, 114 Miss. 354, 75 So. 131; State Highway Commission v. Randall, 180 Miss. 839.
We frankly maintain that this suit should be reversed and the cause remanded for a new trial, because, in its present state, with no testimony in the record, and with two different formulas before the jury for the measure of damages, no one could possibly tell whether a fair and just verdict was rendered or not.
The court below refused three instructions which were asked for by the plaintiff, appellant here. These three instructions clearly embody the law as set out by this court in the case of State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277.
Smith v. State Highway Commission, 183 Miss. 741.
Frank Clark, of Waynesboro, and F.B. Collins, of Laurel, for appellees.
It has been the rule announced by this court ever since it has been a court that the duty devolves upon the appealing party to perfect a record in the Supreme Court and that this court will not reverse any case for alleged errors not apparent of record.
Ventress v. Smith, 35 U.S. 161, 9 L.Ed. 382; Pender v. Felts, 2 S. M. 535; Green v. Creighton, 7 S. M. 197; Doty v. Lucas, 43 Miss. 337; Schraff v. Chaffe, 9 So. 897, 68 Miss. 641.
It is also the uncontroverted rule of this court that every presumption in favor of the validity of a judgment must be resolved in favor of its validity. Second, that the instructions cannot be reviewed unless the testimony is in the record.
Davis v. Brown, 27 Miss. 265; Miss. Cotton Oil Co. v. Blake, 20 So. 156; Wilkinson v. Griswold, 12 S. M. 669; Muirhead v. Muirhead, 8 S. M. 211.
It will also be presumed, and conclusively presumed in the absence of a showing in the record to the contrary, that the appellants requested and obtained the instruction shown on page 38 of the record, which was a fact. This being true, how could appellant put the lower court in error for granting its own requested charge. It is equally as well an established rule that the lower court cannot be put in error for granting instructions requested by the appealing party.
Louisville, N.O. T. Ry. v. Suddoth, 12 So. 205. 70 Miss. 265; G. S.I. Ry. v. Williams, 39 So. 489, 87 Miss. 344; Clisby v. M. O.R.R. Co., 29 So. 913, 78 Miss. 937; I.C.R.R. Co. v. Mahon Live Stock Co., 71 So. 802, 111 Miss. 496.
This court will not review or attempt to review the ruling of the lower court in granting or refusing instructions where no transcript of the testimony or bill of exceptions appears in the record.
Federal Credit Co. v. Zeppernick Grocery Co., 113 Miss. 494, 121 So. 114; G. S.I.R.R. Co. v. Boswell, 38 So. 43; Adams v. Caldwell, 105 So. 398; Morgan v. Embry, 85 So. 580; 4 C.J. 770, sec. 2712. Wilbourn, Miller Wilbourn, of Meridian, for appellees.
Our court has said so many times that an appellant cannot complain of an instruction which he procured the granting of in the lower court, that it would seem to be unnecessary to cite authorities to sustain the point.
State Highway Commission v. Randle, 180 Miss. 839, 178 So. 486.
An instruction asked and modified by the court, and read to the jury by the party requesting it, cannot be complained of.
L. N.R.R. Co. v. McCaskell, 98 Miss. 20, 53 So. 348; Louisville, N.O. T. Ry. v. Suddoth, 70 Miss. 265, 12 So. 205; Liverpool, London Globe Ins. Co. v. Van Os Shuster, 63 Miss. 431; Wilson v. Zook, 69 Miss. 694, 13 So. 351; State Highway Com. v. Brown, 176 Miss. 23, 168 So. 272.
The burden is upon the appellant to show that error prejudicial to the appellant has been committed, and until such appears, the presumption is that the judgment of the lower court is correct.
The court has held, in the case of Federal Credit Co. v. Zeppernick Grocery Co., 153 Miss. 494, 121 So. 114, that the Supreme Court must assume that instructions which were given by the trial court, were justified by the evidence, where evidence was not properly a part of the record.
It is equally true that, where the evidence is not a part of the record, the Supreme Court must assume on appeal that the lower court was correct in refusing to grant requested instructions. No matter if the instructions were correct announcements of the law as declared in the Brown case, the propriety of granting or refusing them turned entirely upon the evidence in the instant case.
In the absence of the evidence in this case, this court cannot possibly say that the Brown case is applicable to it at all. Neither can it determine whether or not this case, on its facts, fell within the doctrine of the Brown case or the case of Railroad Co. v. Ryan, 64 Miss. 405, 8 So. 173.
In the case of State Highway Commission v. Day, 180 So. 794, 181 Miss. 708, the court has correctly pointed out that each highway condemnation case must be governed by its own circumstances, citing in support of that statement the case of Kwong v. Board of Mississippi Levee Commissioners, 164 Miss. 250, 144 So. 693.
We submit that in the absence of the testimony, the Supreme Court has nothing before it upon which to determine what instructions were applicable, or whether or not those given were correct or those refused should have been granted. This being true, the appellant having the burden on appeal, not having properly brought before the court the evidence considered by the court and jury on the trial, has no standing to complain of alleged or supposed errors of the court, either in the granting or refusing of instructions.
The court cannot consider assignments of error that require a consideration of the evidence.
Stewart v. State, 174 So. 579, 179 Miss. 31; Brooks v. State, 173 So. 409, 178 Miss. 575.
The appellee, by a motion, requests that the appellant's bill of exceptions, setting forth the evidence on which the case was tried in the court below, be stricken from the record.
This is an eminent domain proceeding begun by the appellant in the court of a justice of the peace, appealed therefrom to the court below, and resulting there in a judgment for the appellee on January 6, 1938. The court adjourned on January 21, 1938, and notice was duly served on the stenographer to transcribe his notes of the evidence; but he died on March 15, 1938, without having so done. On March 18, 1938, the appellant obtained from the trial judge an order under Section 729, Code of 1930, granting it "sixty days additional time from and after this date . . . in which to perfect its appeal herein by preparing and filing in this cause a special bill of exceptions." On May 12, 1938, the appellant obtained another order from the trial judge granting it "sixty days additional time from and after this date" to prepare and file a bill of exceptions in the case. On the 12th day of July, 1938, the appellant presented a bill of exceptions to the trial judge, who indorsed thereon the following:
"The above and foregoing bill of exceptions is allowed by the Court, on this, the 12th day of July, A.D. 1938.
"Arthur G. Busby, Circuit Judge.
"By special agreement of counsel on both sides, that, this signing take effect as of July 12th, 1938, I am signing this the 16th day of November, 1938, as of July 12th, 1938.
"Arthur G. Busby, Circuit Judge."
Section 729, Code of 1930, provides: "If the original or the copy of the court reporter's notes shall be lost or destroyed, or defaced in any manner, or if the court reporter should die, resign or be unable or otherwise should fail 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 stated, as in cases where no court reporter takes down the evidence." Under this section the trial court is authorized under the circumstances therein stated to grant sixty days, but no more, additional to the sixty days given the stenographer by Section 725 of the Code to transcribe and file his notes, making one hundred and twenty days in all. This one hundred and twenty days here expired prior to the 12th day of July, 1938, and the order extending the time for the filing of the bill of exceptions thereto was void, the trial court having no authority under Section 729 of the Code to so order.
The appellant says that want of power in the circuit judge to approve the bill of exceptions, on July 12, was waived by the appellees, because of their agreement that the judge could approve the bill of exceptions at a later date, to be effective as if approved on July 12. The only effect of this agreement was to make the future approval of the bill of exceptions as effective as it would have been, had it been approved on July 12.
This bill of exceptions not being the court reporter's transcript of the evidence, Section 728, Code of 1930, which provides that if notice has been given the stenographer to transcribe and file the evidence, his transcript thereof shall not be stricken from the record unless it is shown to be incorrect, does not apply here.
The motion will be sustained and the bill of exceptions will be stricken from the record.
So ordered.
On motion of the appellee the bill of exceptions setting forth the evidence in this case was stricken from the record.
The appellant now assigns as error several instructions granted and refused by the court below. The character of these instructions is such that we are unable to consider them in the absence of the evidence on which they were based. If error should appear in the granting or refusal thereof no reversal of the judgment would follow unless when the instructions are applied to the evidence, the Court could say that the appellant was sufficiently prejudiced thereby to so require. Two things an appellant must show in order to obtain a reversal of the judgment appealed from: (1) Error therein, and (2) that he was prejudiced thereby — that he was deprived of a substantial right. Rector v. Shippey, Outzen Co., 93 Miss. 254, 46 So. 408; Jones v. State, 104 Miss. 871, 61 So. 979, L.R.A. 1918B, 388.
Affirmed.