December 19, 1921. The opinion of the Court was delivered by This is an appeal from an order of Judge Moore, and the sole question involved is whether or not a new trial is to be granted in a law case on the ground that the stenographer who took the testimony at the trial died without having transcribed his notes, and no other person could read his notes, notwithstanding that a case had been made and settled by the trial Judge. The Civil Code of Procedure, § 384, and Rule 5 of this Court (90 S.E. vii), provide how a case on appeal shall be prepared. There is no law or rule that requires the use of stenographer's notes in the preparation of the appeal.
The authorities quoted by appellant do not apply to the present procedure. Before 1868 the Circuit Judge could not grant a new trial; the Court of Appeals or the Supreme Court, only, could do that, even in a law case. In the jurisdictions wherein new trials have been granted for loss of testimony, it is based on a Statute or rule of Court. That law does not apply in this State, as before stated.
We have a Statute and rule showing how a case is settled. If there is disagreement in the settling of the case on allowing proposed case or amendments offered, it is the duty of the Judge who tried the case to settle it one way or the other. He can allow so much of the case proposed, or amendments as he sees fit, or he can make a report of the whole case himself, and we are bound by what ever case the Judge makes. It is his duty to give some settlement and report in order that the cause may be heard on appeal.
The provisions of the Statute and rules of Court were complied with, and the presiding Judge settled the case, *Page 324 and that settlement is before us without exceptions. The contention of appellants is without merit and must be overruled, and appeal dismissed.
On petition for rehearing:
February 24, 1922. The opinion of the Court was delivered by