Brice v. Miller (S. Car. 1892), 15 S. E. Rep. 272.

When it is sought to impeach the testimony of a witness by showing that he has testified differently on a former trial, the stenographer who took the notes of the testimony is not the only competent witness. State v. McDonald, 65 Me. 466.

A transcript report of a stenographer containing the evidence given on a former trial cannot be used to contradict the witness on a subsequent trial, the legislature not having declared such reports evidence for any purpose. Phares v. Barber, 61 Ill. 272.

Where one party offers parts of the evidence of a witness given on a former trial in order to contradict such a witness, the other party may put in so much as is relevant, and may cause the stenographer to read his original minutes. Noves v. Gilman, 78 Me. 394.

The stenographer's transcript of evidence given by a deceased witness at a former trial of the same case has been held admissible, although the witness being dumb gave his testimony by signs which the stenographer in his notes described and translated. Quinn 7. Halbert, 57 Vt. 178.

In Brown v. Luehrs, 79 Ill. 575, it was held that the transcript of evidence taken on a trial of a suit at law is properly admitted in evidence on the hearing of a bill in equity for a new trial, when the stenographer who took the evidence testified that he wrote up the same; that the transcript is correct, and that the witnesses had sworn and testified as therein stated.

In California, a stenographer's notes of testimony given on a former trial, are not admissible in evidence if he has not testified to their accuracy, or if they are not in some way authenticated, or if the examination of the witness was incomplete. Misner v. Darling, 44 Mich. 438.

Where depositions of a witness before a register in bankruptcy have been taken by a stenographer and afterwards reduced to longhand, such depositions will be suppressed if not read to, and signed by the witness, although his subsequent attendance for that purpose could not be procured. Cary, 9 Fed. Rep. 754.

In re

A witness examined at a former trial having declared his intention of being absent on the occasion of the second, plaintiff entered a notice three or four days before such trial that the transcript

of the stenographers notes would be offered as evidence. Section 3777, Iowa Civ. Code, provides, that such notes, or any transcript thereof duly certified by the reporter of the court, shall be admissible, in any case in which the same are material to the issue therein, with the same force and effect of depositions, and subject to the same objections so far as applicable. Under these circumstances an objection to the admission of evidence, on the ground that there no sufficient showing that the plaintiff could not have secured the attendance of the witness, and that the notice was insufficient, could not be sustained. Fleming v. Shenandoah Tp., 71 Iowa 456.

was

The testimony of a stenographer in regard to evidence introduced upon a former trial is competent if based upon his recollection of the evidence itself and not of his notes. Moore v. Moore, 39 Iowa 461.

Stenographer's notes are not depositions and detached portions are not to be used to impeach a witness on a subsequent trial without first interrogating him as to them. Seligman v. Ten Eyck, 53 Mich. 285.

California Code Civ. Proc., § 273, provides as follows: "The report of an official reporter of any court, duly appointed and sworn, when written out in longhand and certified as being a correct transcript of the testimony, and of the proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings." Under this section the plaintiff was allowed to introduce the stenographer's transcript of evidence given in another suit, but the supreme court held that this section did not make the transcript itself admissible in evidence. An unfiled transcript is not a public record, but must be put upon the footing of a private memorandum, and having been written up at an uncertain time, is not admissible as part of the res gesta. Reid v. Reid, 73 Cal. 206.

The notes of the shorthand reporter of a district court of Nebraska, of the testimony of a witness examined in that court, is not admissible in a future action between the same parties as documentary or independent evidence. Lipscomb v. Lyon, 19 Neb. 511.

A certified copy of a stenographer's report of proceedings is admissible whenever the original would be. Spielman v. Flynn, 19 Neb. 342.

1. In Cases of Appeal.-In Pennsylvania and West Virginia, the acts relating to a stenographer declare that their "notes shall be deemed and held official, and the best authority in any matter of dispute." Such notes must be made up under the eye and direction and with the approval of the court, and subject to its direction. These notes of testimony, including exceptions to the rulings of the court during the examination, become part of the cause and need not be embodied in any other bill of exceptions, nor require other verification than identification by the clerk of the court and by the reporter himself. Taylor v. Preston, 79 Pa. St. 436; Chase v. Vandergrift, 88 Pa. St. 217; Cummings v. Armstrong, 34 W. Va. 1. In Louisiana, under Act No. 94. 1876, p. 150, it was held, in Nichols v. Harrison, 32 La. Ann. 646, that the notes of a stenographer, although illegible or unintelligible to any one else, constitute a taking in writing under the eye and within the hearing of the court by a sworn officer, and although they had never been trancribed or translated, owing to some accident, the insufficiency of the record under such circumstances was no ground for dismissing the bill."

Iowa.-Evidence taken by a stenographer does not become a part of the record, until the shorthand notes, together with a translation thereof, are deposited in the clerk's office and duly certified by the judge. And this must be done within the time prescribed by law else it constitutes no part of the record and will be stricken from it. Chicago Lumber Co. v. Davis, 82 Iowa 731; Kavalier v. Machula, 77 Iowa 121; Thomas v. McDonald, 77 Iowa 126; Lowe v. Lowe, 40 Iowa 220; Harris v. Snair, 76 Iowa 558: McCarthy v. Watrous, 69 Iowa 260; Gibbs v. Buckingham, 48 Iowa 96; Lynch v. Kennedy, 42 Iowa 220; Wise v. Usry, 72 Iowa 74; Arts v. Culbertson, 73 Iowa 13; Wadsworth v. First Nat. Bank, 73 Iowa 425; Merrill v. Bowe, 69 Iowa 653; Hammond v. Wolf, 78 Iowa 227. The certificate of the judge indorsed upon the transcript, that it is all the evidence given in the trial, is sufficient to make it a bill of exceptions. McCarthy v. Watrous, 69 Iowa 260; Gibbs v. Buckingham, 48 Iowa 96;

McFarland v. Folsom, 61 Iowa 117; Hahn v. Miller, 60 Iowa 96.

In Richards v. Lounesbury, 65 Iowa 587, the court, citing Ross v. Loomis, 64 Iowa 432, held that evidence taken in shorthand can only become written evidence when translated and certified by the reporter, and that the certificate of the judge alone, who cannot read such notes, is not sufficient.

Although the original shorthand notes of the testimony were certified by the judge and the stenographer who took them, the transcript does not become a part of the record, if the typewritten copy used by the judge, and the longhand copy made by the attorney for the appellants were not so certified. Citizens' Sav. Bank v. Stewart, 82 Iowa 719.

Where a translation of the report of testimony taken on a trial, certified by the stenographer and inserted in the bill of exceptions in a blank left for that purpose, was not designated as the testimony in any cause, although on the outside of the document the title of the case was indorsed, such evidence was not sufficiently identified to be considered on appeal. Joy v. Bitzer, 77 Iowa 73.

The transcript of reporter's notes showed that the documents offered were identified by exhibit marks, and that two depositions were read in evidence; to this transcript two documents were attached bearing exhibit marks identical with those called for in the transcript, and two depositions indorsed as in this case; the transcript also contained a copy of the judge's certificate to the original report in shorthand, certifying that the same, together with the documentary evidence therein referred to, contained all the evidence given on the trial. This was held by the court to be sufficient identification of the transcript on appeal. Johnston 7. McPherran, 81 Iowa 230; Way v. Counsel, 76 Iowa 741.

Although evidence is not preserved by bill of exceptions it may be preserved by the stenographer's report, and upon being duly certified, may be come a part of the record on appeal. DeLong v. Lee. 73 Iowa 53.

It was stated in a bill of exceptions that the "evidence was taken down by the official stenographer in the form of

depositions, and the notes were filed in the clerk's office and made a part of the record therein, and a true transcript of said notes and evidence made and exhibited by the report is as follows: (here the court will insert a true and complete transcript of all evidence offered and introduced in the trial);" such statement in the bill did not identify the evidence by any unmistakable reference thereto as required by the Code of Iowa, § 2834. Nelson v. Peterson, 82 Iowa 739.

Indiana. In order to constitute the longhand manuscript of evidence taken by a stenographer a part of the record on appeal, it must be incorporated into the bill of exceptions. Marshall v. State, 107 Ind. 173; Weir Plow Co. v. Walmsley, 110 Ind. 242; Shirk v. Coyle, 2 Ind. App. 354.

Ă paper in the record purporting to be the stenographer's report of evidence, not signed or attested by the judge, is entirely without force. Louisville, etc., R. Co. v. Kane, 120 Ind. 140; Lyon v. Davis, III Ind. 384.

But it has been held in McCormick, etc., Mach. Co. v. Gray, 114 Ind. 340, that where the original longhand manuscript of the evidence was followed by the certificate of the official reporter to the effect that it contained all the evidence given in the cause, the trial judge, when he signed a statement to the effect that the plaintiff tenders the document as his bill of exceptions, and prays that the same may be signed and made a part of the record, sufficiently certified that all the evidence given in the cause was contained in such manuscript.

If there be an omission in the record on appeal to note the appointment and swearing of the stenographer, such defect may be cured by the stenographer certifying that he was the duly appointed reporter, together with the certificate of the clerk, that the report is the original longhand manuscript of the evidence, and was made a part of the bill of exceptions. Tobin v. Young (Ind. 1888), 17 N. E. Rep. 625.

A bill of exceptions which ended with a statement to the effect that it contained all the evidence given in the cause, and duly signed by the presiding judge, will not be disregarded because the reporter was not sworn. Williams 7. Pendleton, etc., Turnpike Co., 76 Ind. 87.

A stenographer's report of oral testimony is not a "written instrument."

within the meaning of Indiana Rev. Stat., § 626, which allows written instruments to be brought into a bill of exceptions, by the words, "here insert, etc." Wagoner v. Wilson, 108 Ind. 210; Fahlor v. State, 108 Ind. 387; Lowery v. Carver, 104 Ind. 447; but the report in order to be brought into a record must be set out in the bill before the latter has been signed by the judge; merely attaching it to the bill after it has been signed will not effect Patterson v. Churchman, 122 Ind. 379; Dick v. Mullins, 128 Ind. 365.

this.

Under Indiana Rev. Stat., § 1410, the longhand manuscript of a report of evidence taken by a stenographer, appearing in a bill of exceptions, is an original document incorporated therein; the original papers attached to and properly identified in such longhand report are considered a part thereof, and are properly in the record, notwithstanding the general rule, that original papers read in evidence must be copied in the bill of exceptions at the proper place and cannot be transmitted to the court with the record. Indiana, etc., R. Co. v. Quick, 109 Ind. 295; Tobin v. Young (Ind. 1888), 17 N. E. Rep. 625.

In Indiana, it is held that a bill of exceptions may not contain any matter in the characters used by shorthand writers, upon the principle that all pleadings must be in the English language. Merrick v. State, 63 Ind. 327.

Michigan.-By Michigan Act, 1879, § 8, the minutes of the official stenographer are authorized to be used in settling a bill of exceptions, but it does not give them the character of depositions, or record evidence generally. Edwards v. Heuer, 46 Mich. 95.

The entire evidence as taken by the

stenographer was sent up as a bill of exceptions, but there was no index to the record or to the parts thereof to which the assignments of error ap plied. In such case the court will not examine the record critically for error. Pease . Munro, 83 Mich. 475.

In case of an appeal in a divorce suit, the settlement of facts, preparatory to taking the appeal, may properly be made on the stenographer's notes. where the judge goes out of office before the time for such settlement expires. Johnson v. Johnson, 49 Mich. 639.

The preparation of a bill of exceptions by merely taking a heading

I. In General, 567.

II. Stipulations for Costs, 571.

III. Stipulations for Costs and Dam

ages, 573.

IV. To Appear and Abide or Pay

Decree, 573.

V. To Abide or Pay Decree, 574. VI. For Value, 574. VII. On Appeal, 581.

and conclusion to the usually voluminous notes of a stenographer, is oppressive in its expense to the parties, and imposes unnecessary labor on the court. Therefore, the plaintiff was allowed only one-third of the expense in taxing the costs. Rice v. Rice, 50 Mich. 448.

North Carolina.-In case of appeal, the bill of exceptions should not contain the entire amount of evidence embraced in the stenographer's report, but only so much of such evidence, and other matters occurring on the trial, as may be necessary to present and illustrate the matters excepted to. Durham Tp. v. Richmond, etc., R. Co., 108 N. Car. 399.

Montana.-The evidence contained in the record on appeal was a mere transcript of the shorthand reporter's notes, by question and answer, and no reason was given why it should be in that condition. Such record could not be considered, and therefore the findings were presumed to be sustained by the evidence. Barger v. Halford, 10 Mont. 57, citing Newell v. Myendorff, 9 Mont. 254.

Oregon. The Oregon statute authorizing the appointment, etc., of official stenographers, provides in § 5, that the notes of such stenographer when transcribed and certified as correct and filed with the clerk, as provided, may thereafter be read in evidence under the same circumstances as depositions, but nothing in the act gives such notes the effect, or makes them perform the office, of a bill of exceptions. McQuade v. Portland, etc., R. Co., 19 Oregon 535.

Wyoming.-The Act of December, 1877, provides that the transcription of

a stenographer's notes into longhand, shall be deemed to be a correct statement of the testimony given on a trial, but such transcription cannot take the place of a bill of exceptions, for the Wyoming Civil Code, § 303, requires a certified and absolutely true statement of the evidence to be taken up in all proceedings in error. Johns v. Ādams, 2 Wyoming 194.

Massachusetts.-The purpose of the Massachusetts statute of 1870, ch. 312, providing for the appointment by the superior court of the county of Suffolk of stenographers, is to afford assistance to the court and the counsel in conducting the trial and in drawing up reports and bills of exceptions, not that a complete report of all that took place in the court below whether material or immaterial to the questions of law reserved should be transmitted to the supreme judicial court.

Where a report from the superior court stated none of the rulings upon the admission and rejection of the evidence, and upon the question reserved, whether there was any evidence to be submitted to the jury, referred to the stenographer's report annexed; and this report, as printed, covered about two hundred pages and consisted in large part of irrelevant and unimportant details of testimony, long cross-examinations, affecting only the bias and credibility of witnesses, and interlocutory discussions between the judge and counsel, through which the rulings of the judge and the portions of the evidence bearing upon the questions of law to be determined were scattered, it was held that the report was so irregular that it must be dismissed. Churchill v. Palmer, 115 Mass. 310.