Sanders v. State , 74 Miss. 531 ( 1896 )

Whitfield, J.,

delivered the opinion of the court.

This is a ease in which stenographer’s notes having been taken, the court allowed sixty days within which they should be filed, from November 14, 1896. The bill of exceptions was not presented to or signed by the judge, but on January 25,• 1897, the counsel on both sides filed in this court their written agreement that the copy of the evidence made by the circuit clerk from the notes of the official stenographer in said cause is £ £ entirely correct. ’ ’ This is very inartificial, but we think it may be fairly treated as an agreement that the stenographer’s notes as £ £ originally filed ’ ’ were correct. It would be too literal a construction to hold that the agreement must be indorsed “ on the stenographer’s notes” — on the very paper and none other on which they were written. We think the agreement may properly be on a separate sheet. The particular ground of the motion is that the agreement was not made in time; that it ought to have been made in writing within the sixty days. But the provisions of the act of March 18, 1896 (Laws, pp. 91-93), with respect to “ mailing or expressing bills of exceptions to the trial judge ” within sixty or ninety days, relate alone to cases in Avhich the judge is to pass upon and sign such bills. There is no provision in the act expressly limiting the time within which ‘ ‘ the agreement of the parties or their attorneys ” shall be made in writing, and the act should be liberally construed in that regard, in the absence of- such express limitation. It was easy to name a time within which it should be made, if the purpose of the legislature was to fix such a limit, short of the period which would bar an appeal. Nor will anything in favor of the motion, follow from the analogy supposed to obtain (as tó time within which such agreement must be made) between such time and the time within which bills of exceptions must be mailed or expressed to the judge for his signature. For the reason which chiefly required the judge to sign, Avithin some specified short period, was that the judge might pass upon bills of exceptions before the facts had faded from his memory. But under the new practice, Avhere stenographer’s notes are used as the bill of exceptions, and counsel agree in writing that they are correct and shall constitute the bill, no such necessity exists, since such notes, when filed, are a permanent memorial of Avhat the evidence and rulings of the court in the case were. We think this construction in harmony Avith the spirit and letter of the act. It is not for the court to fix a limit of time, when the legislature fixed none. This construction will not be found to work, practically, any delay, ordinarily, in the making of the written agreement, beyond the sixty or ninety days. For parties, or their counsel, who allow the sixty or ■ ninety days to elapse Avithout mailing or expressing the bill for the signature of the judge, and without making the written agreement, will be wholly at the mercy of each other, a sufficient incentive to see to it, ordinarily, that the written agreement is made within the sixty or ninety days. Wherefore the motion is

Overruled.