Lynn v. Plumb

Missouri Court of Appeals

Lynn v. Plumb

808 S.W.2d 439, 1991 Mo. App. LEXIS 650, 1991 WL 74180

CourtMissouri Court of Appeals

DecidedMay 7, 1991

DocketNo. 17248

StatusPublished

Cited by11 cases

This text of 808 S.W.2d 439 (Lynn v. Plumb) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lynn v. Plumb, 808 S.W.2d 439, 1991 Mo. App. LEXIS 650, 1991 WL 74180 (Mo. Ct. App. 1991).

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Opinion

PER CURIAM.

Appellants have directed this court’s attention to the fact that the transcript in this ease is incomplete. Appellants timely ordered the transcript of trial proceedings and deposited sufficient funds with the Circuit Clerk of Douglas County for its cost of preparation. However, a complete tran[440]*440script was not prepared. The transcript that was prepared and that has been filed with this court does not include part of testimony of one respondent. None of the testimony of two other witnesses is included.

This case was tried before an associate circuit judge and the record of the trial proceedings was made by means of a magnetic tape recording device. § 478.072, RSMo 1986. Three tapes were used to record the proceedings. One of the three tapes was lost.

The inability to prepare a transcript is not through any fault or negligence of appellants. Appellants exercised due diligence in seeking preparation of a complete transcript. Nevertheless, their right of appeal is prejudiced by reason that they have been unable to secure a complete transcript for filing as part of the record on appeal. Rule 81.12(a). For that reason the judgment of the trial court must be reversed and a new trial granted. Dykes v. McNeill, 735 S.W.2d 213 (Mo.App.1987). The judgment is reversed and this case is remanded for new trial.

All concur.

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PER CURIAM.

Appellants have directed this court’s attention to the fact that the transcript in this ease is incomplete. Appellants timely ordered the transcript of trial proceedings and deposited sufficient funds with the Circuit Clerk of Douglas County for its cost of preparation. However, a complete tran[440]*440script was not prepared. The transcript that was prepared and that has been filed with this court does not include part of testimony of one respondent. None of the testimony of two other witnesses is included.

This case was tried before an associate circuit judge and the record of the trial proceedings was made by means of a magnetic tape recording device. § 478.072, RSMo 1986. Three tapes were used to record the proceedings. One of the three tapes was lost.

The inability to prepare a transcript is not through any fault or negligence of appellants. Appellants exercised due diligence in seeking preparation of a complete transcript. Nevertheless, their right of appeal is prejudiced by reason that they have been unable to secure a complete transcript for filing as part of the record on appeal. Rule 81.12(a). For that reason the judgment of the trial court must be reversed and a new trial granted. Dykes v. McNeill, 735 S.W.2d 213 (Mo.App.1987). The judgment is reversed and this case is remanded for new trial.

All concur.

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Bluebook (online)

808 S.W.2d 439, 1991 Mo. App. LEXIS 650, 1991 WL 74180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynn-v-plumb-moctapp-1991.

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