McClanahan v. O'Donnell

^* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 316, n. 43; p. 1039, n. 2; 4CJ, p. 898, n. 92; Equity, 21CJ, p. 716, n. 93 New. The appellants Charles McClanahan and many others, as beneficiaries under the last will and testament of Butler McClanahan, deceased, filed a bill in the chancery court of Forrest county against the appellee T.L. O'Donnell and numerous corporations, in which it was alleged the said Butler McClanahan owned stock at the time of his death, and prayed for full discovery from each of said corporations as to the interest of the said deceased therein at the time of his death, and shortly prior thereto, the value of said interest, and the disposition that had been made thereof. As against the appellee T.L. O'Donnell, it was charged that, by fraud, breach of trust, and undue influence exercised at a time when the testator was mentally incapacitated to transact business, the said O'Donnell had acquired the legal title to, and was claiming the ownership of, all the property which the testator owned at the time of his death or for more than a year prior to his death. The averments of undue influence, fraud, and breach of trust were lengthy and specific; and the bill prayed that the said O'Donnell be compelled to make full and complete discovery in regard to all the matters set forth in the bill of complaint, giving an exact detail of all the transactions between himself and the deceased, McClanahan, listing all of the said property, its present value, its disposition and present whereabouts, and upon what basis the said O'Donnell and others claimed to be the owners thereof; and also prayed for a decree adjudging the appellants to be the owners of all this property, and for an accounting. The several defendants filed answers to the bill, making the discovery prayed for, and the appellee O'Donnell also filed an answer denying in detail all the allegations of the bill as to undue influence, fraud, and breach of trust, and making a full and complete discovery as to all matters set forth in the bill of complaint.

The bill of complaint, as well as the answer of the appellee O'Donnell, was several times amended, and finally the cause came on for hearing before the chancellor on the bill, answers, and oral and documentary proof. There were many witnesses offered by both the complaint and defendants; and the stenographer's notes of the testimony of these witnesses were taken down by Mrs. Sarah Dale Hathorn and Joe Rhodes, stenographers. Mrs. Hathorn, who was the official stenographer of the said chancery court, took the testimony of only two of these witnesses, while, for some reason not disclosed by this record, the remainder of the testimony was taken by the said Joe Rhodes, as stenographer pro tempore. After a full hearing of the cause, on the second day of October, 1925, the chancellor granted a decree denying all the relief prayed for and dismissing the bill of complaint.

The stenographic notes of that portion of the testimony taken by Joe Rhodes, stenographer pro tempore, were not filed within the time allowed by law, and on April 1, 1926, long after the time allowed by law for filing any bill of exceptions the appellants filed in the court below a petition for rehearing, alleging, in substance, that when the trial started the testimony of the first two or three witnesses were taken down by the official stenographer; that she was then succeeded by Joe Rhodes as stenographer pro tempore, who took all the remainder of the testimony; that the evidence taken by him was very voluminous, a large number of witnesses being introduced by both the complainants and the defendants; that appellants' attorneys had no means other than the stenographic notes to know or remember the names and the testimony of these witnesses; that no notes of the evidence were kept by the court, or under its direction, other than the stenographic notes; that there was no evidence to sustain the good faith of the conveyances to O'Donnell, but, on the contrary, the evidence showed circumstances of the gravest suspicion of actual and active fraud; and that, if the evidence had been preserved in the record, it would have shown that it was wholly insufficient to uphold the findings of the court on this and other vital issues, so that, upon appeal, the decree would necessarily be reversed.

It was further alleged that the appellants were prevented from having the evidence made a part of the record by fraud and collusion occurring after the rendition of the decree; that within ten days after the rendition of said decree, the appellants served the said Rhodes with the required statutory notice to transcribe his notes of the evidence; that some time after this notice was served the said Rhodes requested the attorney for the appellants to advance his fee for transcribing said notes, which was done upon the representation by Rhodes that the transcript of such evidence was ready to be filed, with the exception of the copying of one exhibit which he did not then have in his possession, that the said notes would be filed on the following Saturday; that, upon learning later that said notes had not been filed, the said attorney made inquiry for said Rhodes and learned that he had absconded; that said attorney learned upon reliable information that the said Rhodes was in collusion with the appellee O'Donnell, who induced him to abscond without filing his notes; and that said attorney made diligent search for the stenographer Rhodes, but was unable to ascertain his address.

It was further alleged that the appellants' attorney made known to counsel representing the appellee the fact that the said Rhodes had absconded, and requested them to write the substance of their evidence which they desired to have incorporated in the record so that appellants might prepare a fair bill of exceptions, but this appellee refused to do; that the appellants were able to prepare a fair statement of the substance of the evidence offered by them, but they were wholly unable to prepare a statement of the substance of the evidence for appellee; and it thus became, without any fault of the appellants, impossible to complete the record so that an appeal might be prosecuted.

The petition prayed the court to set aside and vacate the final decree in said cause, and to grant the appellants a rehearing, or that the petition be received and acted upon as a petition for leave to file a bill of review in said cause for matter occurring after the rendition of said decree.

The appellee O'Donnell filed an answer to this petition specifically denying all the allegations of fraud or collusion between him and the defaulting stenographer, and denying that the petition presented any facts which would justify the court in setting aside the final decree granted in the cause. After a hearing of this petition and the evidence offered in support thereof, as well as the testimony of the appellee O'Donnell, the court rendered a decree specifically finding that the evidence wholly failed to establish that the appellee O'Donnell was guilty of any fraud or collusion with the stenographer, Joe Rhodes, and finding from the evidence that, as a matter of fact, said appellee was not guilty of any fraud or collusion, and had done nothing to prevent the appellants from perfecting the record for appeal to this court, and ordered the petition dismissed. From this decree the appellants prosecuted this appeal.

The petition of appellants in this case seeks to have the chancery court set aside a final decree rendered after a full hearing upon the pleadings and the evidence, and long after the adjournment of the term of court at which said decree was rendered, on the ground that the appellants were entitled to a bill of exceptions in order that the record of the trial of the entire cause might be reviewed by this court on appeal, and since, through no fault of the appellants, they were unable to secure a transcript of the evidence or bill of exceptions, they were entitled to a rehearing or a new trial in order that the testimony might be retaken, and thereby their right of appeal, and a review of the entire record, be secured. The petition charges that the default of the stenographer was the result of fraud and collusion between him and the appellee, but, upon the proof offered to sustain this charge, the chancellor found that the appellee was guilty of no fraud or collusion with the stenographer, and that he had done nothing to prevent the appellants from perfecting the record for appeal to this court. Upon this question of fact we think the finding of the chancellor must be sustained, and we must consider the question presented by this appeal as one arising in a case where the failure or inability of the appellants to secure a transcript of the evidence or bill of exceptions is not due to any fraud or other fault of the appellee.

Chapter 111, Laws of 1910, section 797 (d) (section 599, Hemingway's 1927 Code), provides, among other things, that:

"In case a copy of the transcribed notes cannot be furnished, a bill of exceptions may be prepared within the time hereinafter stated, just as in cases where no stenographer takes down the evidence. . . . In case of the death of the stenographer before filing copy of his notes of the evidence in any case, or of his failure to file the same, after having been notified by appellant, within sixty days after notice to transcribe, or within any extended time, the party taking the appeal may, within forty days after the extended time, prepare and present to the judge a bill of exceptions in the case, as if there had not been a stenographer therein, and the judge shall examine, correct if necessary, and sign the same within the time prescribed, sixty or ninety days after the end of the term, or within the extended time aforesaid."

This section also provides a method of making the transcribed notes of the evidence a part of the record in the event of the death or incapacity of the trial judge, or of his refusal to approve and sign them, while section 796, Code of 1906 (section 594, Hemingway's 1927 Code), provides a method of securing a bill of exceptions in case the trial judge is prevented from signing it by reason of death, resignation, or other incapacity.

From an examination of these statutes it will be seen that the legislature has attempted to provide a method of supplying a bill of exceptions under all contingencies, and particularly in case of the death or default of the stenographer who took the notes of the evidence. An appeal is solely a statutory right, and, in the absence of fraud or fault on the part of the opposing litigant who has secured a judgment or decree in his favor, the party desiring to appeal therefrom must pursue the method and remedy provided by statute. We recognize the fact that it may often be difficult, and sometimes may be impossible, to supply a proper bill of exception where the stenographer's notes of the evidence cannot be secured on account of the death or default of the stenographer; but the legislature has provided a plain and direct remedy for such cases, and this is the remedy that must be pursued by one desiring to appeal from an adverse ruling or decision of the court, when the opposite party, who has acquired a valuable and vested right by the decision, is free of any fraud or fault that caused or contributed to the failure or inability of the dissatisfied party to secure a transcript of the evidence or perfect an appeal.

Upon the record now before use we are not called upon to pass upon the question of what, if any, rights the appellants would have had in the court below in the event it was established that the failure of the stenographer to file the stenographic notes of the evidence was due to the fault, or fraud of the appellee; or whether in such case the appellants could have availed of the remedy and procedure which was approved and followed in this court in the cases of Quarles v. Hiern, 70 Miss. 259, 12 So. 145, andGermaine v. Harwell, 104 Miss. 679, 61 So. 659, where it was charged that the appellant was unable to complete the record, for the reason that the original papers had been either lost or destroyed while in the possession of the appellee. Upon these questions, we express no opinion.

The decree of the court below will therefore be affirmed.

Affirmed.