Appellee has moved to strike the bill of exceptions because it allegedly was filed too late. So far as we can learn, appellant made his request for the bill in proper time. The official court reporter, appointed by the trial court, has filed an affidavit stating that she was ill and unable to make timely compliance with the request. *Page 478
Appellant filed his notice of appeal ahead of the time required and contends that if the time is computed by taking the full periods for the filing of the notice of appeal and the time thereafter for the filing of the bill of exceptions, the latter will be within the rule.
As to this defense, we express no opinion. Appellee has cited decisions holding that there must be strict compliance with the rule as to the time for bills of exceptions, but none of them seems to be strictly in point.
In the case now before us, the reporter was a court-appointed official reporter, upon the public payroll and working under the direct supervision of the court. Everyone agrees that counsel for appellant requested the preparation of the bill of exceptions several days in advance, and the affidavit filed by Mrs. Evelyn Walters, the official reporter, stands uncontroverted in the record. Mrs. Walters, who is a highly efficient and respected member of the staff of Armstrong and Okey, the official reporters, says in simple terms that she was ill and immediately upon her return to work got the bill of exceptions filed.
It has not been shown, nor is it claimed, that counsel for appellant failed to do anything he could do. We do not feel that justice will be served by sustaining the motion, and it therefore will be overruled.
Motion overruled.