Missouri & North Arkansas Railroad v. Reed , 110 Ark. 296 ( 1913 )

Smith, J.,

(after stating the facts). It will be seen that section 2 of this act provides that the presiding judge may order the official stenographer to make a stenographic report of any proceedings in the court not already a matter of record therein. And section 3 provides for the making of a bill of exceptions and a transcript on appeal by this stenographer, and the payment of his fees therefor. Section 4 authorizes the presiding judge to assess a fee in each case tried and reported by the official stenographer in his court to be taxed and collected as other costs. This fee provided for in section 4 is assessed like other costs against the unsuccessful litigant and paid as costs of the trial, whether an appeal was taken or not, or any transcript of the evidence was ever made or not.

Respondent says the writ prayed for should not be awarded for the reason, first, that he has not declined to approve a bill of exceptions, and because section 3 provides the exclusive method for the preparation of bills of exceptions, and under the terms of the act he can only consider a bill of exceptions made in conformity with its requirements. It is conceded that mandamus is the proper remedy to compel the circuit judge to sign a bill of exceptions, and it has been so expressly decided in the case, of Sea Insurance Co. v. Fulk, 103 Ark. 503. But respondent says that the case last cited is authority for his position that this court will not control his discretion, and that he has not declined to approve a bill of exceptions, but has only declined to approve one not made in conformity with section 3 of the act above referred to.

We think the act in question has not undertaken to provide an exclusive method for the preparation and approval of bills of exceptions. If this was so, the provisions of the statute in regard to bystander’s bills of exception would be repealed and inoperative in the Fourteenth Judicial Circuit. But there is nothing in the act which would indicate that petitioner might not resort to that method of making a bill of exceptions if it conceived the one made by the official stenographer was not correct, and the court had declined to approve any other or to change the one prepared by the official reporter. The presiding judge must determine the correctness of the bill of exceptions, and he can not delegate that duty to the stenographer who reported the case. The act in question gives the presiding judge the authority to order any case reported by the official stenographer and allows him to assess as costs of the case a fee for this service, of not less than three dollars nor more than twenty-five dollars, to be paid as other costs in the case. But the act does not provide that a bill of exception shall not be considered by the court unless prepared by the official stenographer. The court is therefore in duty bound to examine the bill of exceptions presented by petitioner and approve same, if found correct, or to make such changes or additions as are necessary to make it correct.

The writ of mandamus will therefore be awarded notwithstanding the fact that the time originally given for its filing has expired, because respondent is responsible for the delay. Springfield v. Fulk, 96 Ark. 316.