Ruffin v. Page

67 So. 648, 109 Miss. 12

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is a motion to strike the stenographer’s transcript from the record, on the ground that it was filed by the stenographer after the expiration of the time within which he was empowered so to do, has “never been signed by the trial judge nor been agreed on by the parties, nor become apart of the record by operation of law, ’ ’ and is incorrect in a material particular. In support of the allegation that the transcript is incorrect in a material particular, an affidavit has been filed setting- forth the omission of certain testimony which was introduced on the trial. It does not appear from this testimony alone that it is material to the issues upon which we will be called to pass on this appeal, and unless it does so appear the transcript cannot, under the provisions of subdivision “d,” sec. 1, ch. Ill, Laws 1910, be stricken from the record.

The case will therefore be remanded to the docket so that counsel for appellee, if they so desire, may point out, hy brief or otherwise, wherein this evidence is material; and, when this is done, the court will examine the record and determine whether or not it is in fact material.

Remanded.