J. J. Newman Lumber Co. v. Lucas

Citations

• 108 Miss. 784
• 67 So. 216

Syllabus

<p>1. Appeal and Error. Dismissal. Grounds. Delay in filing record. Prejudice.</p> <p>Until the return day of a cause in the supreme court has passed and the clerk of the court, in which it was tried, has failed to file the record thereof with the clerk of the supreme court, an appellant is not charged with the duty of taking any steps to compel the clerk of the trial court to file the record. When the return day has passed, however, without the record being filed, “it then becomes the duty of the appellant to seasonably apply to the supreme court for whatever aid he may need to obtain the filing of the record. On his failure to do so, the cause will be dismissed under section 4921 of the Code, if the rights of appellee have been thereby prejudiced, unless it further appears that appellant was guilty of no negligence in the matter.”</p> <p>2. Dismissal of Appeal. Grounds. Delay in filing record. Prejudice.</p> <p>Where a cause was returnable in the supreme court on appeal on the third Monday in January, and the record, including the stenographer’s transcript, was filed on February 12th, the appellant’s motion to dismiss the appeal will be overruled, since an application by appellant after the return day for certiorari to bring up the record, would not have caused it to be filed any sooner, and the appellee was not prejudiced by appellant’s failure to make such application.</p> <p>3. Record. Stenographer’s transcript. Delay in filing. Remedy.</p> <p>The failure of the stenographer in the court below to file his transcript of the evidence, cannot be raised by motion to dismiss the appeal, where the transcript was filed before the motion was heard, but only by motion to strike the transcript from the record.</p> <p>OPINION ON MOTION TO STRIKE STENOGRAPHER’S TRANSCRIPT FROM RECORD.</p> <p>Appeal a,nd Error. Record. Striking transcript.</p> <p>Under Laws 1910, chapter 3, section 1, Par. D, providing that if notice for transcript is given hy appellant to the stenographer