Waller v. O'Rear

472 S.W.2d 789, 1971 Tex. App. LEXIS 2258

• Court: Court of Appeals of Texas
• Decided: September 30, 1971
• Docket: 5076
• Status: Published

Opinions

OPINION

JAMES, Justice.

Appellant Mary L. Waller brought this suit in the trial court against Appellees for personal injuries, where trial was had to a jury; and after Plaintiff (appellant) rested, the trial court withdrew the cause from the jury and entered judgment for Defendants (appellees).

On August 13, 1971, Appellant filed a motion in this court for extension of time for filing the Statement of Facts, accompanied by an affidavit of the court reporter, alleging in effect that the Statement of Facts was unavailable through no negligence or want of diligence on the part of Appellant; but because of the heavy caseload of the trial court, coupled with the fact that the court reporter had been on vacation for two weeks, and because the Statement of Facts had been misplaced, the extension of time was sought. This motion was shown to have been agreed to by Appellees.

Then on September 9, 1971, Appellant filed in this court a motion to reverse and remand this cause for a new trial, alleging that the court reporter’s notes were lost, and a Statement of Facts was impossible. This motion was supported by affidavit of the court reporter to the effect that he had made diligent search, but could not find his notes, and did not believe he could ever find them, and that there was no other source from which a statement of facts could be prepared by him. This motion to reverse and remand was not shown to be agreed to by Appellees; however, the record does not show any reply to have been made to it by Appellees.

The appealing party is entitled to a statement of facts in question and answer form, and if, through no fault of his own, after the exercise of due diligence, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved to him in no other way than by a retrial of the case. Victory v. Hamilton (Tex.Com.App.1936) 127 Tex. 203, 91 S.W.2d 697 at page 700, opinion adopted by the Supreme Court; Gibbs v. Crittenden (Waco, Tex.Civ.App.1953), 262 S.W.2d 804, no writ history.

Accordingly, the judgment appealed from is reversed and remanded to the trial court for another trial, and in accordance with our previous opinion in Gibbs supra, one-half of the costs of this appeal are taxed against Appellants and one-half against Ap-pellees.

Reversed and remanded.