Summary
reversing and remanding cause for preparation of proper record where appellant sought, but could not obtain, transcript because tape of proceeding was lost through no fault of appellant
Summary of this case from S.H. v. P.B.Opinion
No. 17248.
May 7, 1991.
APPEAL FROM THE CIRCUIT COURT, DOUGLAS COUNTY, ANTHONY McCONNELL, J.
Thomas W. Cline, Gainesville, for appellants.
John W. Bruffett, Ava, for respondents.
Appellants have directed this court's attention to the fact that the transcript in this case 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 transcript 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.