Ex Parte Wright , 226 Ala. 206 ( 1933 )

BROWrN, Justice.

At the time the local law creating the office “official stenographer of Jefferson County” (Acts 1901, pp. 2255-2258) was enacted, the chancery court had not been abolished, and, under the law and rules of chancery practice of that date, testimony taken in cases pending in chancery was taken by deposition, reduced to writing before a commissioner of the appointment of the register, or examiner appointed by the chancellor. Code 1896, §§ 723-740; Rules Ch. Pr. 40-65. At that time there was no statute or rule of practice authorizing the oral examination of witnesses in the presence of the court, and consequently no provision was made in the local law in respect thereto. Therefore that act is without influence on the question presented in this case.

And article 5 of chapter 268 of the Code (Code 1923, §§ 6733-6742), by its express provisions, does not apply “to circuits which consist of only one county and have three or more than three judges.” Code 1923, § 6733.

So the question must be determined by the law as expressed in article 24 of chapter 267, Code of 1923. This article embraces sections 6574, 6575, 6576, and 6591.

Sections 6574 and 6575 originated in the Act approved September 22, 1915, Acts 1915, p. 705, after equity jurisdiction was conferred on the circuit court and the chancery court abolished, by the Act approved August 16, 1915, Acts 1915, page 279, and were brought into the Code of 1923 in the article (article 6574 et seq.) dealing with “Oral Examination, Interrogatories, Commissions, Subpoenas, Witnesses.”

Section 6574 provides that “In all eases in equity the judge before whom the case is pending may at any time before final decree cause any or all of the witnesses to be examined orally before him in open court.”

And section 6575 provides: “In all cases where a witness is examined orally in open court under the provisions of the preceding section, the judge trying the case must require the court reporter or some other competent stenographer, to take down the testimony, as delivered, and such judge may require such testimony to be -transcribed in typewriting, and certified to by the stenographer and file the same in the cause.”

Section 6576 provides for the appointment of a commissioner by the register and “examiners” by the court, to take down and transcribe oral testimony, on application of the parties; and section 6591 provides: “For taking and certifying the testimony of witnesses, the commissioner, register, or examiner is entitled to twenty cents for every hundred words, not including the caption, certificate, or exhibits, one dollar and fifty cents for each day he is necessarily engaged, and five cents for each mile necessarily traveled by him in taking such testimony; all of which must, upon his certificate, be taxed as costs in the cause; but the circuit judge may, fo-r good cause shown, reduce such compensation.”

The “general rules applicable to all fees, civil or criminal,” are to be found in article 5, chapter 275, Code of 1923. Those pertinent here • are section 7255 and section 7258, the first of which provides: “The law of fees and costs must be held to be penal, and no fee must be demanded or received except in cases expressly authorized by law.” The other provides: “Fees allowed by law are d.ue only at the termination of the suit, except that fees for transcripts of {papers filed in the cause, other than copies of bills, to which parties are entitled as of course, are due when service is performed,” etc. (Italics supplied.)

All testimony noted, on the submission of equity cases, becomes a part of the record, under the provisions of Rule 75 of Chancery Practice, and this applies to testimony taken orally in the presence of the court. Crews et al. v. State ex rel. Patterson, Solicitor, 206 Ala. 101, 89 So. 205.

Under these statutes and rules of practice, it was clearly the right of the petitioner who has prayed for and obtained an appeal to this court from the final decree, to have the court enter an order requiring the stenographer who took the testimony to transcribe the same and file it in the case, without the prepayment of tlie costs therefor. Allen v. Allen, 223 Ala. 223, 135 So. 169.

The only condition to her right of appeal is that she give security for the costs of appeal. Code 1923, § 6131. To this end the peremptory writ of mandamus will be granted as prayed in the petition, unless the respondent. Hon. W. ,M. Walker, on being advised of this opinion, modifies his order by striking therefrom the words “upon payment of costs thereof by the respondent, Thelma Wright.”

We are not of opinion that the petition presents a case where this court should interfere and suspend the execution of the decree committing the custody of the child to its paternal grandmother, and in this respect the petition is denied without prejudice.

Petition granted in part, and in part denied.