
    Robert L. Evans v. James M. Ham.
    [54 South. 250.]
    MOTION TO STRIKE FROM THE RECORD THE STENOGRAPHER’S; TRANSCRIPT OE -THE TESTIMONY.
    Supreme Court Practice. Stenographer's transcript of testimony, Code 1906, § 797, amended by Laws 1910, eh. Ill, p. 93, § 797(E. Motion to strike out.
    
    Under Code 1906, § 797, as amended by Laws 1910, cb. Ill, p. 93,.
    § 797d, providing tliat a stenographer’s transcript of Ms notes of the testimony in a cause shall not he stricken from the record by the supreme court unless it be shown that the same is incorrect in a material particular, and has neither been approved by the judge, nor agreed to by the parties, nor become a part of the record by-operation of law, a motion to strike from the record the stenographer’s transcript of the evidence is unsustainable in the absence of a showing that it is incorrect in a material particular.
    From the circuit court of, second district, Jones county.
    Hon. Paul B. Johnson, Judge.
    Evans, appellant, was plaintiff in the court below; Ham, ap-pellee, was defendant there. From a judgment in defendant’s-favor the plaintiff appealed to the supreme court.
    When the case reached the supreme court the defendant made the motion mentioned in the opinion of the court.
    
      B. E. Ualsell, for motion.
   Mayes, O. J,,

delivered the opinion of the court

This case is before the court on motion of appellee to strike out the stenographer’s notes. The only grounds specified in the motion as cause for striking out of the stenographer5s notes is, first, because the appellant failed to deliver the notes to the attorney representing appellee as required by section 797a., page 93, Laws of 1910; and second, that tbe notes were not delivered to tbe attorney for appellee until more than thirty days after tbey were filed in tbe office of tbe circuit clerk.

There is no attempt on tbe part of appellee to make any showing that tbe notes were incorrect “in some material particular” but tbe sole grounds relied on are as above stated. In this view of it we apprehend that counsel making tbe motion overlooked section 797<7, of tbe Laws of 1910, page 94. This section provides that whenever tbe appellant or bis attorney notifies tbe stenographer in writing that a copy of tbe notes is desired, within thirty days after tbe conclusion of any term of court, “no stenographer’s transcript of bis notes shall be stricken from the record by tbe supreme court, for any reason, unless it be shown that such notes are incorrect in some material particular.” This showing was not made, nor is it stated in tbe motion that the notice required by section 797a was not given.

Of course tbe right to dismiss a case under Code 1906, § 4921, still remains and may be resorted to in any proper case. But tbe last section has no bearing on the motion now under consideration. Motion overruled.  