Johnson v. Ward , 102 Miss. 464 ( 1912 )

Reed, J.,

delivered the opinion of the court.

The appellant sued to recover the statutory penalty of two hundred and fifty dollars, provided in section 4793 of the Code of 1906, for the failure of appellee Ward to transcribe and file his stenographic notes in .the case of appellant versus the High Point Buggy Company.

It appears that the case named was reported partly by appellee Ward, the regular court stenographer, and partly by S. J. Sloan, stenographer pro tempore. Appellee Ward .only reported the testimony of one witness, and perhaps not all of that witness’ testimony. He was then taken ill, and S. J. Sloan, a duly appointed stenographer pro termpore, reported the balance of the testimony in the case.- It appears that Ward was repeatedly requested to transcribe and file the official stenographic notes. Plis excuse for failure to do so is that he was unable to get Stenographer Sloan to transcribe and deliver his part of the notes. In answer to a question as to what effort he made to get Sloan to prepare his notes, appellee Ward said: “I saw him a .number of times, and requested him to get them up. I insisted that he get the notes up. I offered to pay him to get them up. He would promise that he was going to get them up right away, but he never would do so. I used every possible means that I knew of to get him to transcribe the notes, so that I could file the record, but all to no avail.” He also said in excuse that he did not understand it to be his duty to file a transcript of a part of the notes taken by him until he was in a position to file all of the notes, which would be a complete record of the testimony. In answering, upon cross-examination, as to why he did not file the transcript of the notes taken by him, appellee Ward said: “Well, because I did not think a part of a document or record could be filed at one time and another part at another; or, in other words, I did not think that it could be filed by piecemeal. I talked to one or two, or two or three, lawyers on that point, and I was advised that I could not file a part without filing the whole. The law says that a < completed record must be filed, and my notes were not a completed record. ’ ’.

Section 4793 of the Code of 1906 provides a penalty for willful neglect of duty on the part óf a court stenographer. The part of the section invoked in the present case is as follows: “If any stenographer shall neglect' or refuse to transcribe his official notes and to file such transcript within the time and in the manner required by ]aw, or by order of the court or judge, he shall be liable upon his bond for a penalty in the amount of two hundred and fifty dollars, to be recovered by the party aggrieved thereby, whether the person aggrieved has suffered any actual damage or not. ’ ’

It is beyond question fhat a court stenographer is required to transcribe his official notes, and file the transcript thereof in the court, within the time prescribed, and that his failure to do this renders him liable for the penalty provided in the statute. Nothing said in this opinion must be construed to mean that the stenographer shall be relieved from liability by reason of his neglect and refusal to transcribe his notes and file the transcript thereof in due time. However, it is hardly probable that the framer of section 4793, when writing, had in mind a case like the present one; that is, a case reported by the regular stenographer and a pro tempore stenographer,, and where the second named stenographer reported the larger part of the testimony, and failed and refused to-file the transcript of his notes.

The appellee Ward would have shown better judgment in transcribing and filing the notes taken by him when requested to do so, even though he had reported only a small part of the case. In view of all the facts of the instant case, however, and in view of the statement, made by appellee Ward, that he believed and was advised that he should not file a part only of the record of the testimony, but that he should file at one and the same time all of the record of the testimony, that reported by him and that reported by Stenographer Sloan, it would hardly be proper and in keeping with the spirit of the law to inflict upon him the penalty provided in the statute.

Affirmed.