Old Men's Home, Inc. v. Lee's Estate , 191 Miss. 669 ( 1941 )

ON MOTION. The reporter of the court below failed to file a transcribed copy of his notes of the evidence, and a bill of exceptions prepared "as in cases where no court reporter takes down the evidence" was tendered to and approved by the judge of the court below. The appellee has filed a motion to strike this bill of exceptions from the record, alleging as a reason therefor that: "Final decree herein was entered in vacation October 16, 1940, and on October 22, 1940, the official court reporter was given notice by appellant to transcribe and file his official notes in this cause as required by law. On December 17, 1940, appellant filed its appeal bond and the same was approved by the Chancery Clerk of Claiborne County, Mississippi, December 17, 1940. The official court reporter never transcribed and filed his notes as required by law. On March 26, 1941, appellant filed and presented to the Chancellor its bill of exceptions which was approved and allowed on March 26, 1941.

"Therefore, the bill of exceptions was filed and presented to the Chancellor and allowed by him out of time allowed by law for filing and presenting bills of exceptions and should be stricken from the record."

Under Section 725, Code of 1930, as amended by Chapter 236, Laws of 1936, this court reporter had sixty days after the filing and approval of the appeal bond herein in which to file a transcript of his notes of the evidence, which time could have been, but was not, extended thirty days under Section 727 of the Code. Section 729 of the Code under which this bill of exceptions was filed provides that "if the original or the copy of the court reporter's notes shall be lost or destroyed, or defaced in any manner, or if the court reporter should die, resign or be unable or otherwise should fail to transcribe his notes, and furnish a typewritten copy of his notes, sixty days additional time shall be allowed for the preparation of a bill of exceptions, or as the case may be, another copy of the transcribed notes. In case a copy of the transcribed notes cannot be furnished, a bill of exceptions may be prepared within the time stated, as in cases where no court reporter takes down the evidence." This clearly allows an appellant in cases where the court reporter fails to file a copy of his transcribed notes of the evidence sixty days additional to the time allowed the reporter in which to file the transcript, in which to furnish a bill of exceptions "as in cases where no court reporter takes down the evidence." The bill of exceptions here was filed within such additional time but the movant says that this additional time if desired by an appellant must be applied for and granted before the expiration of the time allowed the reporter for filing his transcript. The statute does not so require and Mississippi State Highway Department v. Meador et al., 184 Miss. 381, 185 So. 816, 186 So. 642, invoked by the movant, does not so hold though there is language therein that might be so construed.

In that case the court reporter failed to file a transcribed copy of his notes and the appellant obtained an order from the trial judge granting it sixty days from the date of the order in which to file a bill of exceptions. The time thus extended exceeded the limit permitted by the statute. Consequently, the bill of exceptions filed pursuant thereto was stricken from the record. Whether a request for the extension was necessary was not presented for decision.

Motion overruled.