Appellee filed a motion to strike the transcript of the court reporter's notes from the record for the reason that the court reporter was not given notice by the appellant to transcribe his notes, as required by Section 725, as amended by Chapter 236 of the Laws of 1936. There *Page 844 were other grounds for the motion, but it is not alleged in the motion that the transcript of the notes is in any manner incorrect.
Redmond replied at length to the suggestion of error, and filed a carbon copy of a letter to the court reporter, dated March 25, 1940, requesting said court reporter to transcribe his notes. Relative thereto, he said: "Appellant was told on March 25th, 1940, by Hon. J.H. Howie, who was then representing appellant in this cause, that appellant's motion for a new trial had that day been overruled, and being desirous of an appeal, appellant immediately prepared a notice to the Hon. R.S. Streit, Court Reporter, and asked the Honorable Mr. Streit to transcribe his notes in said cause and send them up, a copy of said notice is attached hereunto marked `Exhibit A' to this answer and asked to be considered as much a part hereof as if copied herein." Redmond answered further that he sent notice to the clerk to prepare the record and to send it to the Supreme Court; also, that the docket (referring to the circuit court docket) shows notice to both stenographer and clerk under date of May 22, 1940. The record shows that an order was entered by the court on May 22, 1940, overruling appellant's motion for a new trial.
In connection with this motion, appellant filed a separate motion for certiorari, requiring the clerk to send up the docket entries as to the filing of certain papers pertinent to this motion, and a certificate of his docket entries relative thereto, which includes the written notice to the stenographer. Appellant does not allege how or when or if ever he served the notice on the court reporter. If, however, he has actually had the notice served on the court reporter in accordance with the statute, he may file a copy with the circuit clerk and have it sent up.
The motion for certiorari will be granted as prayed for; and the motion to strike the transcript of the record will be passed until the circuit clerk has made his return in answer to the writ of certiorari herein granted. The *Page 845 certificates and documents prayed to be sent up must be filed in this Court within ten days from this date.