Opinion
No. 20095.
July 11, 1979.
Appeal from the 254th District Court, Dallas County, Patrick C. Guillot, J.
Larry B. Bach, Forney, Stanley E. Latman, Dallas, for appellant.
William E. Fullingim, Dallas, for appellee.
Before GUITTARD, C. J., and STOREY and CARVER, JJ.
Appellant moves to vacate the judgment and remand the case for a new trial on the ground that, through no fault of his own, he has been unable to obtain a statement of facts because of loss of the official reporter's notes. Appellee opposes the motion and presents his own "summary of the testimony," which has been certified as correct by the trial judge. We hold that appellant is entitled to have the case reviewed on a question-and-answer statement of facts and that this right can be preserved in this case only by a new trial.
Appellant states that the grounds of his appeal are that there is no evidence, and, in the alternative, insufficient evidence to support the trial court's judgment. These grounds cannot properly be considered in the absence of a verbatim record of the testimony. Waller v. O'Rear, 472 S.W.2d 789, 791 (Tex.Civ.App. Waco 1971, writ ref'd n. r. e.) (instructed verdict). Under Rule 377, Tex.R.Civ.P., an appellant 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 in no other way than by a retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, 700 (1936). Appellant presents in support of his motion an affidavit of the official reporter stating that appellant had made a timely request, that both the shorthand notes and the recording of the testimony were stolen, and that efforts to recover them have been unsuccessful. Thus, due diligence by appellant has been shown.
Judgment vacated and cause remanded for another trial.