Smith v. Jenkins Oil Corporation , 90 S.W.2d 841 ( 1936 )

The appellant appeals from an order of the trial court overruling his plea of privilege. The transcript reaches this court without a statement of facts.

The record reveals that the testimony heard on the trial was taken down in shorthand by an official shorthand reporter; and, in due time, the appellant sought to have the reporter prepare and file with the clerk a full and complete statement of all the facts proven on the trial of the cause. Subsequently, the reporter died, resulting in appellant's attorney himself attempting to prepare and have approved by the adverse party and the trial judge a purported statement of facts; and, on the failure to effect such approval, the attorney presented the statement he prepared to the trial judge along with a motion for the judge to prepare and file a statement of facts under proper certification.

The trial judge granted the motion and attempted to comply with appellant's request; but, upon finding himself unable to prepare a complete statement of facts, due to a lack of material and pertinent data, certified his inability; and, in qualifying appellant's bill of exception, depicted the unfortunate circumstances under which the appellant was deprived of a statement of facts, and too, without fault on appellant's part or that of the trial court, necessitating a reversal of the case. Therefore, the case is reversed, and the cause remanded to the court below for a new trial.

Reversed and remanded.