Hines v. Shumaker

Wíhteield, O. I.,

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 was filed by May, Flowers & Whitfield, but before the trial of the ease in the court below that firm had been dissolved; Mr. May associating himself thereafter with Mr. Saunders, so that thereafter there were two separate firms, May & Saunders, and Flowers & Whitfield. Due notice of this dissolution was published in the city papers, and of the formation of the other partnerships. In addition to this, both the firm of May & Saunders and Flowers & Whitfield had the names of their respective firms, and the parties composing them, painted in large letters on the windows of their offices, opposite the offices of the attorneys for the appellant. It is evident, from the affidavit in the case, that the circuit clerk knew of these dissolutions, and that Mr. May was in a new and separate firm, before these notes were filed.

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, Flowers & 'Whitfield, but was a member of an independent firm, created after the declaration was filed in the case in the court below. The statute does not stop with directing the clerk of the circuit court to notify each attorney or firm, but expressly provides how he shall notify them' — >“by mail or in person.” And in this case it is frankly admitted by counsel for appellant that, not only did he not notify Mr. May by mail or in person, but that he never notified him in any manner whatever.

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 passage by the legislature, this same provision that each attorney and each firm shall be notified by the clerk is retained, and wisely retained. It was the simplest thing in the world for the circuit clerk, since Mr. May lived in Jackson, in easy reach of his office, to give him the notice required. He negligently failed to do so. It is not for this court to engraft exceptions upon this statute, which has been construed so often as a mandatory statute, or in any wise alter its express direction.

Therefore the motion is sustained, and the stenographer’s notes hereby stricken from the record.