Robinson v. McKnight ( 1923 )

Smith, C. J.,

delivered the opinion of the court.

This is a motion to strike the transcript of the evidence' from the record made under the provisions of section 797 (d),'Code of 1906 (Hemingway’s Code, section 585), as the same appears in chapter 145, Laws of 1920, section 1, which provides :

“If notice as above is given to the stenographer by the appellant or his counsel within ten days after the conclusion of the terms of court, no stenographer’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 on by the parties, nor. become a part of the record as provided by this act.”

It appears from the transcript of the stenographer’s notes that: ‘ ‘ Complainant introduces bill of complaint in cause No. 2196—F. Krauss & Sons v. C. E. Robinson et al., in September, 1921, term of Jefferson county chancery court, and defendant denies the allegations of the bill.”

The bill of complaint does not appear in the transcript which fact is the basis of the motion to strike the transcript from the record.

The stenographer’s transcript of the evidence was not approved by the trial judge nor agreed to by the parties hereto, and we will assume that it did not “become a part of the record as provided by” the statute. Nevertheless the motion must be overruled for it does not appear that the omitted evidence is material to a decision of the issue which the court below was called on to try. The recital in the record relative thereto does not disclose that it is material to the issue, and no evidence aliunde the record has been offered by the appellee in support of the motion. Under the statute, before a transcript of the evidence can be stricken from the record, it must be made to affirmatively appear, not only that the transcript is incorrect, but that it is incorrect “in some material particular.”

What effect, if any, the absence of this evidence from the record will have when we come to the consideration of the cause on its merits, should any question relative thereto arise, is not now before us, and we express no opinion thereon.

Motion ovemded.