Sabathier v. Ellerman

172 So. 218

• Court: Louisiana Court of Appeal
• Decided: January 11, 1937
• Docket: No. 16406.
• Status: Published

Opinion

McCALEB, Judge.

This matter was set down for argument on November 20, 1936. When the case was called, counsel .on both sides informed us that the transcript was incomplete due to the untimely death of Mr. Henry J. Gassie, formerly stenographer in Division C of the Civil District Court, and upon this showing the case was ordered to be continued indefinitely.

On December 29, 1936, counsel for plaintiff and appellant filed a motion to remand the case to be tried de novo in the Civil District Court because the stenographer’s notes, taken by Mr. Gassie when the trial was had below, could not be located or transcribed. There can be no doubt that we are unable to determine the correctness of the judgment below where the transcript, as in the present case, is incomplete.

We have held in the case of Barnes v. American Can Co., No. 10,066 [See Louisiana and Southern Digest], that “When appellant is unable to complete the transcript of appeal, because of - the death of the stenographer who reported the case in the trial court, upon application to this court the judgment appealed from will be. reversed and the case remanded for a new trial;”

Inasmuch as the facts respecting the death of Mr. Gassie are practically identical with the facts existing in the above-cited case, we are bound, in the interest of justice, to reverse the judgment and remand the cause for a new trial.

For the reasons assigned, the judgment of the Civil District Court in this. cause, rendered on February 17, 1936, and signed on February 21, 1936, is reversed, and it is now ordered that the case be remanded for a new trial and further proceedings according to law and consistent with the views herein expressed.

Reversed and remanded.