BRODY v. ARMSTRONG, 205 Ala. 263 (1921)


BRODY v. ARMSTRONG, 205 Ala. 263 (1921)
87 So. 798

BRODY v. ARMSTRONG.

6 Div. 200.Supreme Court of Alabama.
January 27, 1921.Page 264

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

A. Latady, of Birmingham, for appellant.

Shorthand characters are not writing. 153 Iowa, 17,132 N.W. 814; 132 Iowa, 253, 109 N.W. 866. The testimony must be reduced to writing in the presence of the witness. Section 4039, Code 1907; 57 Fed. 490, 6 C.C.A. 459. The witness may write his own answers. 17 Ga. 622; 134 La. 84, 63 So. 640. If the commissioner does not understand the phonetic characters, he cannot in the nature of things, comply with rules 6 and 65, Chancery Practice.

Beddow Oberdorfer, of Birmingham, for appellee.

Mandamus does not lie in this character of case. 26 Cyc. 174, 199, and note. There is no such right as is here sought to be enforced. 147 Ala. 177, 41 So. 150; 121 Ky. 322,89 S.W. 212, 11 Ann. Cas. 1065; 90 Iowa, 282, 57 N.W. 852; 18 C. J. 227; 13 Cyc. 935.

GARDNER, J.

The petitioner in this cause, appellant here, was being examined orally before a commissioner agreed upon by the parties in an equity suit then pending in the circuit court of Jefferson county, and he insists by this proceeding that upon such examination his legal rights are being denied in that the testimony is being taken in shorthand to be subsequently transcribed into the English language, and that this is violative of the provisions of section 4039 of the Code of 1907, which places the duty upon the commissioner to reduce the answer to writing or cause the same to be done. The argument is that this manner of taking testimony by shorthand is not writing ? citing Howerton v. Augustine, 153 Iowa, 17,132 N.W. 814, and Moller v. United States, 57 Fed. 490, 6 C.C.A. 459, which cases we have examined.

As we understand it, the argument of counsel for appellant is based upon the theory that by this method of examination he is deprived of the right of an examination of his testimony, and dependent upon the certificate of a commissioner as to the correctness thereof, after the same has been transcribed ? all in violation of the foregoing section of the Code, and to his detriment andPage 265
disadvantage. In this insistence we do not agree. This is an oral examination had before a commissioner agreed upon by the parties, and is governed by rule 65, Chancery Practice, as found on page 1546 of the Code of 1907. Subdivision 6 of said rule requires that the deposition upon such oral examination shall be taken down in the form of a narrative, and when completed the same shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend, and that if the witness refuses to sign the officer taking the deposition shall state that fact in his certificate. Upon such examination therefore, so conducted, it is seen that the witness is given the fullest protection as to the correctness of his testimony, and provision is made not only for it being read over to him but for his signature to be attached thereto, if correct.

Therefore the only question presented upon this appeal is whether or not the commissioner is required to reduce the testimony into the English language immediately upon the witness testifying, or, to facilitate the taking thereof, may he take it down in shorthand and have the same transcribed. We see no objection to this latter method, which, no doubt, is most commonly in use, and is so recognized by Acts 1915, p. 705, relating to the taking of oral testimony before the court.

Petitioner here seeks an extraordinary legal remedy, which is only to be granted when there is clear specific legal right shown, for the enforcement of which there is no other adequate remedy. State ex rel. Troy v. Smith, 187 Ala. 411, 65 So. 942; Ex parte Huckabee, 71 Ala. 427.

Here petitioner makes no complaint that his testimony will not be properly submitted to him for consideration, and for his signature, and that therefore his testimony will not be correctly certified and reported to the trial court, but only complains as to the manner of its taking. If incorrect, he has a remedy of refusing to sign the same, which is brought to the attention of the court where it will be presumed he will be given full protection. We are of the opinion that petitioner falls far short of coming within the rule for the granting of this extraordinary writ, and the ruling of the court thereon is correct.

The foregoing is by way of answer to petitioner’s argument, and is not at all intended to indicate a different result would have been reached, had the examination been governed by section 4039 of the Code, as that question is not presented or considered.

The judgment of the court below will be affirmed.

Affirmed.

All the Justices concur.