delivered the (first) opinion of the court; the one afterwards set aside; it was as follows:—
The stenographer’s notes in this case were not signed by the judge. Nor is there any agreement, in writing or otherwise, between the counsel for the respective parties that they were correct. At the time of the institution of this suit the declaration
On the trial in the court below, both these separate firms were present and participated in the trial; that is to say, the firm of Flowers & Whitfield, and the other independent firm of May & Saunders. It is conceded, very frankly, by learned counsel for appellant, that no notice of any kind whatever was given to Mr. George May of the filing of stenographer’s notes, as the statute imperatively requires should be done. The language of the statute is express, and has been over and over again declared by this court to be imperative and mandatory. See section 797, Code of 1906. That section reads as follows on this point: “As soon as the stenographer’s notes, transcribed, shall be first received by the clerk of the circuit court, he shall notify each attorney, or firm, interested in such case, by mail or in person, that said notes were received and are on file.” As stated, there is no pretense whatever that this provision in this statute was complied with in any manner whatever. Mr. May never had any notice of any kind. The circuit clerk testifies, in the second affidavit, that the name signed to the declaration in the case was May, Flowers & Whitfield; but this is no sort of excuse for failure to notify Mr. May, who was not, at the time of the trial in the court below even, much less at the time of the filing of the notes after the trial, a member of the firm of May,
The provision in the statute that each attorney or firm interested shall be notified is one of the highest wisdom. Suppose a case in which three separate attorneys represent the plaintiff on the trial in the court below, and the clerk gives notice to one of them, but not to the other two of the attorneys; these attorneys residing at points distant from each other in the state. Is it possible that the two- attorneys not notified as required by the statute can be bound by reason of notice given to the other attorney, in the face of the express declaration in the statute that each attorney should be notified ? Manifestly, not. Suppose, again, in such case, one of these attorneys is the leading counsel in the case, and the other two, being mere assistants should .be notified, and the leading counsel not notified. Is it possible that the leading counsel can be bound by notice given to the other two? Just as manifestly not. And, of course, what is true of separate attorneys is true of separate firms. It is impossible to fail to see the wisdom, therefore, of the statute, when it imperatively and mandatorily requires the circuit clerk to give notice of the filing of the stenographer’s notes to each attorney, and also to each firm intei’ested in the cause. It is not for us to judicially legislate. The statute is so written, and wisely so written; and it is the duty, the imperative and mandatory duty, of the clerk to give the notice in the manner required by the statute.'
We may also mention that in the very admirable substituto for section Y97, Code of 1906, prepared by Judge Fletcher, and adopted by the Bar Association, for recommendation for pas
Therefore the motion is sustained, and the stenographer’s notes hereby stricken from the record.