Hoyt v. INA of Texas , 1988 Tex. App. LEXIS 1138 ( 1988 )

752 S.W.2d 628 (1988)

Cindy HOYT, Appellant,
v.
INA OF TEXAS, Appellee.

No. 10-88-006-CV.

Court of Appeals of Texas, Waco.

May 19, 1988. Rehearing Denied June 23, 1988.

Virgil W. Yanta, Kugle, Stewart, Dent & Frederick, San Antonio, for appellant.

Franklin Moore, Murphy, Shrull, Moore & Bell, Fort Worth, for appellee.

OPINION

McDONALD, Chief Justice.

Appellant (plaintiff) Cindy Hoyt appealed from a judgment of the 249th District Court and caused the transcript and a partial statement of facts to be filed in this court.

Appellant made 3 motions for extension of time to file the balance of the statement of facts.

Appellant now files a motion for summary remand because of inability to obtain the balance of the statement of facts and attaches the court reporter's affidavit reciting: that she has searched for her stenographic notes of the record, but is unable to find same; that she will be unable to provide or produce same; and that such is through no fault of appellant or her attorneys.

The motion was served on the attorneys for appellee (defendant) who have filed no response.

An appealing party is entitled to a statement of facts. If through no fault of his own and after the exercise of due diligence he is unable to produce a statement of facts, as here, his right of appeal can be preserved in no other way than a reversal of the judgment and a retrial of the case. Waller v. O'Rear, CCA (Waco) NRE, 472 S.W.2d 789; Wolters v. Wright, S.Ct., 623 S.W.2d 301.

The motion is granted. The judgment is reversed and the cause remanded for new trial.

REVERSED & REMANDED.