{ "id": 1444246, "name": "Elvins v. Morrow", "name_abbreviation": "Elvins v. Morrow", "decision_date": "1942-06-08", "docket_number": "4-6771", "first_page": "456", "last_page": "462", "citations": [ { "type": "official", "cite": "204 Ark. 456" }, { "type": "parallel", "cite": "162 S.W.2d 892" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "222 S. W. 367", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "144 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1587981 ], "opinion_index": 0, "case_paths": [ "/ark/144/0240-01" ] }, { "cite": "104 S. W. 984", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "104 S. W. 187", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "84 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524354 ], "opinion_index": 0, "case_paths": [ "/ark/84/0100-01" ] }, { "cite": "199 Ark. 663", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456553 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/0663-01" ] }, { "cite": "237 S. W. 1096", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364100 ], "opinion_index": 0, "case_paths": [ "/ark/152/0129-01" ] }, { "cite": "235 S. W. 283", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "151 Ark. 106", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1366069 ], "opinion_index": 0, "case_paths": [ "/ark/151/0106-01" ] }, { "cite": "131 S. W. 694", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "96 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541972 ], "opinion_index": 0, "case_paths": [ "/ark/96/0316-01" ] }, { "cite": "23 S. W. 651", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "58 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329170 ], "opinion_index": 0, "case_paths": [ "/ark/58/0110-01" ] }, { "cite": "14 S. W. 622", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "53 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911651 ], "opinion_index": 0, "case_paths": [ "/ark/53/0415-01" ] }, { "cite": "255 S. W. 288", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "161 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1388508 ], "opinion_index": 0, "case_paths": [ "/ark/161/0087-01" ] }, { "cite": "260 S. W. 441", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "163 Ark. 423", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383857 ], "opinion_index": 0, "case_paths": [ "/ark/163/0423-01" ] }, { "cite": "245 S. W. 35", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "155 Ark. 639", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1360514 ], "opinion_index": 0, "case_paths": [ "/ark/155/0639-01" ] }, { "cite": "238 S. W. 618", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364081 ], "opinion_index": 0, "case_paths": [ "/ark/152/0452-01" ] } ], "analysis": { "cardinality": 600, "char_count": 11777, "ocr_confidence": 0.475, "pagerank": { "raw": 3.548873576649069e-07, "percentile": 0.8851983262344638 }, "sha256": "5ea704828db2e8f8e436105c266b12e1ebb41672c9634f9fcec82666d576cd3c", "simhash": "1:8150859511fe1ff1", "word_count": 2044 }, "last_updated": "2023-07-14T21:22:22.082665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Elvins v. Morrow." ], "opinions": [ { "text": "Griffin Smith, C. J.\nTwo decrees were rendered: one June 20, 1941; the other August 29, 1941. The first was set aside August 15, 1941, when the cause was reopened and continued for hearing at the regular August term.\n-A recital in the decree of June 20 is that the cause was heard upon the plaintiff\u2019s petition, the answer of defendants, and the evidence offered in support of the conflicting contentions.\nThe decree of August 29, after enumerating the pleading, recites a hearing upon testimony of Sam Morrow, W. M. Elvins, Mrs. O. H. Weddle, and Bernal Se\u00e1instef.\nThe motion before us is to strike the matter presented as a bill of exceptions. The cause is captioned: \u201cIii the Washington Chancery Court. Sam Morrow v. W. M. Elvins, Faye Tom Elvins, and City Water Plant, defendants; Mrs. O. H, Weddle, Intervener.\u201d There follows the clerk\u2019s attestation: \u201c. . . the above entitled cause came on to be heard upon the pleadings heretofore filed.\u201d\nUnder \u201cEvidence Introduced on Behalf of Plaintiff,\u201d there appears the following: \u201cSam Morrow, having been called as a witness in his own behalf, after being duly sworn testified. . .\u201d\nSimilar language precedes the testimony of Harry E. Hamilton, Mrs. O. H. Weddle, and W., M. Elvins, witnesses for plaintiff, and Bernal Seamster, called by the defendants. Certain exhibits are attached.\nFinally, there is the clerk\u2019s certificate that \u201c. . . the foregoing 59 pages of typewriting contain a true and complete transcript of the pleadings, docket entries, and decree . . .\u201d Immediately preceding the clerk\u2019s certificate is the following by Gertrude Williams: \u201cI do hereby certify that the foregoing testimony of witnesses and exceptions thereto, the rulings of the court, and the exceptions thereto, were duly taken down by me in shorthand and duly and correctly transcribed and the foregoing is a full, true, and correct copy thereof, and all the acts and things done in this cause as reflected by the pleadings filed herein and the hearing held on August 29, 1941. Witness mv hand this nineteenth day of February, 1942. \u201d\nIf, from the nature of the writing, we may assume that Gertrude Williams was court reporter, (either regularly appointed or selected especially for this case) there is the further complication that in the same certificate pleadings and other matters forming part of the record are referred to. Since it is the clerk\u2019s duty to prepare and avoncli the record, including depositions and transcribed oral testimony properly brought in, that part of the certificate is at least superfluous.\nIt will be observed that no witnesses are identified in the so-called stenographer\u2019s certificate; and while the testimony of six persons appears in that part of the transcript intended as a bill of exceptions, only four witnesses are mentioned in the decree of August 29. Harry E. Hamilton and Clyde Counts are quoted at transcript pages 39 to 42, inclusive.\nIn McGraw v. Berry, 152 Ark. 452, 238 S. W. 618 (chancery case), oral testimony was taken at trial without an order designating a stenographer. A paragraph in the opinion is: \u201cUnder our practice, oral evidence introduced in chancery cases may be made a part of the record by having it taken down in writing in open court and filed with the papers in the case, by bill of exceptions, or by reducing the testimony to writing and embodying it as a recital in the record of the decree. \u2019 \u2019\nThere was this additional holding: \u201c. . . in order for the transcribed stenographic notes to become a part of the record, under order of the court and without consent of the parties, they must be transcribed and filed in court during the term at which the case is tried, and not at a time beyond the adjournment of the court.\u201d\nIn Sercer v. Hamilton, 155 Ark. 639, 245 S. W. 35, the decision is summarized in a headnote to the Arkansas Report as follows: \u201cTestimony of witnesses heard orally before the chancery court and taken down in shorthand and ordered transcribed and filed as depositions in the case was improperly incorporated, where it was not filed with the clerk during term time nor brought into the record by bill of exceptions or by being incorporated in the decree.\u201d\nPer curiam orders were made June 5,1939, in Causes Nos. 5536 (Jesse Pearl Loutner v. Marvin E. Lautner) and 5554 (Arabella White v. J. N. White). In each appeal \u2014the first having been from Washington chancery, and the second from Logan chancery \u2014 appellee\u2019s motion to strike the bill of exceptions was sustained on the ground that no time had been asked or allowed within which to file a bill of exceptions, and that which purported to be a bill of exceptions was not signed by the chancellor.\nIn Smith v. House, 163 Ark. 423, 260 S. W. 441 (chancery case), it was said: \u201cDepositions filed after the term at which the ease was decided, where no time was given for so filing them, will not be considered on appeal, though the parties stipulate that they constitute all the evidence introduced at the trial.\u201d\nIn the instant case there is no order by the chancellor granting time for filing the transcribed testimony. Neither is there an order fixing time for filing a bill of exceptions. Between August 29, 1941 \u2014 when the decree was rendered \u2014 and February 19, 1942 \u2014 when the clerk certified the record \u2014 the November term of court intervened.\nIn Floyd v. Booker, 161 Ark. 87, 255 S. W. 288, (chancery case) it was said: \u201cNo time having been requested or obtained within which to file the bill of exceptions beyond the term at which the decree was rendered, the judge trying the case could not have approved, signed, and ordered the bill of exceptions to be filed as a part of the record after the adjournment of the court. Under our statute, in order for a bill of exceptions, prepared and filed after adjournment of court, to become a part of the record, it was necessary for a day certain to have been fixed for the filing of same and for the bill to have been approved and signed by the trial judge or agreed upon by the parties, and filed with the clerk within the time allowed by the court. Watson v. Watson, 53 Ark. 415, 14 S. W. 622; Stinson v. Shafer, 58 Ark. 110, 23 S. W. 651; Springfield, v. Fulk, 96 Ark. 316, 131 S. W. 694.\u201d\nThere is nothing in Act 12, approved February 2, 1937, negativing the requirement that a bill of exceptions be approved by the judge unless the parties are in agreement. Section three of the Act, after providing that the stenographer shall make copies of the testimony, directs that the original be delivered to the clerk to be inserted in the transcript, \u201c. . . while the third copy shall be kept on file in the clerk\u2019s office with the other papers in the ease, which copy so filed shall be treated and have the same effect as depositions in the case in the regular manner. \u2019 \u2019\nIn Chaffin v. Lee County National Bank, 151 Ark. 106, 235 S. W. 283, (law case) Act 163 of 1921, providing for an official court stenographer to serve the first judicial district, was construed.\nContention was that the provision for a ribbon copy for the clerk\u2019s use \u201c. . . as a part of the transcript in the supreme court on appeal without the necessity of another copy thereof\u201d did away with the requirement that bills of exceptions be approved by the judge. In the opinion it is said:\n\u201cWe think the section quoted has no such purpose as appellants ascribe to it. The purpose of the Act was to permit and require the official stenographer, in transcribing his notes, to make a \u2018ribbon copy thereof\u2019 so that it would not be necessary for the clerk of the court . . . to make a copy of the bill of exceptions as prepared by the stenographer, but to permit the use of the copy made by the stenographer in the transcript. In other words, the necessity of copying the bill of exceptions by the clerk was to be dispensed with. The act was intended only to save labor, and not to deprive the presiding judge of the right and duty to approve the bill of exceptions.\u201d\nSo, with Act 12 of 1937. Direction that the copy filed with the clerk \u201c. . . shall be treated as and have the same effect as depositions in the case in the regular manner\u201d was also intended to prevent duplication of effort;\nNeither does \u00a7 1493 of Pope\u2019s Digest afford relief, as the language is almost identical with the special act.\nHowever, in construing this section in Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096, the court held that oral evidence in a chancery case may be made a part of the record (1) by having it taken down in writing in open court \u201cand by leave filed with the papers in the case,\u201d (2) bj^ bill of exceptions, or (3). by reducing the testimony to writing and embodying it as a recital in the decree. See Woodruff v. Dickinson, 199 Ark. 663, 135 S. W. 2d 667.\nVerity is the essential sought in testimony. The trial court (except as to a by-standers\u2019 bill of exceptions) is the final authority, and approval by the judge of what purports to be transcribed testimony is imperative unless .brought into the decree or judgment, or unless the parties are in agreement. This goes only to the testimony covered by the agreement. It does not authorize bills of exceptions to be filed after the term has expired and a new term has intervened, unless time was given when the decree or judgment was rendered, or when the appeal was granted, or there was an agreement to that effect.\nThe next inquiry is, What is meant by the expression found in \u00a7 1493 of Pope\u2019s Digest that a stenographer\u2019s transcription of oral testimony shall be filed with the clerk \u201cand treated as depositions taken in the regular manner?\u201d Was it intended thereby to substitute a stenographer\u2019s certificate for the judge\u2019s approval of a bill of exceptions? We do not think so. The parties may agree that a particular person shall \u201ctake\u201d the testimony, copy it, and then file with the clerk. Obviously the same procedure was intended to apply to oral testimony\u2019 taken in open court. If the parties agree that a designated person may take such testimony, transcribe it, and file as depositions, such consent eliminates necessity for subsequent court approval of the stenographer\u2019s work if the transcription is filed before a new term of court intervenes in those cases where time is not given, or if filed within the designated period when time is allowed.\nThe statute does not expressly prescribe the time within which transcribed stenographic notes of testimony must be filed, but by necessary implication the period cannot run beyond the beginning of an intervening term, except by consent. The decree becomes final when the term ends unless jurisdiction has been retained.\nIn the Harmon case, this statement appears: \u201cIt cannot be left to the stenograxilier to make up the record after the term has ended, without the supervision or direction of the chancellor. To allow this might be to substitute an entirely different record on appeal. Nor does the section give the stenographer and chancellor in vacation the power to make up the record without a bill of exceptions.\u201d\nThat authentication of the transcript'by a court stenographer is unavailing is too well settled to require extended citations. See Murphy v. Citizens\u2019 Bank, 84 Ark. 100, 104 S. W. 187, rehearing denied Citizens\u2019 Bank v. Murphy, 104 S. W. 984; Blackford v. Gibson, 144 Ark. 240, 222 S. W. 367.\nIt follows that in the case at bar there is no bill of exceptions. That which purports to be must be disregarded because it has been challenged by appellee on grounds falling within the court\u2019s rules. Since no errors appear upon the face of the record, the decree must be affirmed.\nAn original and two copies.", "type": "majority", "author": "Griffin Smith, C. J." } ], "attorneys": [ "John W. Nance and Earl C. Blansett, for. appellant.", "Rex W. Perkins, for appellee." ], "corrections": "", "head_matter": "Elvins v. Morrow.\n4-6771\n162 S. W. 2d 892\nOpinion delivered June 8, 1942.\nJohn W. Nance and Earl C. Blansett, for. appellant.\nRex W. Perkins, for appellee." }, "file_name": "0456-01", "first_page_order": 474, "last_page_order": 480 }