Neal v. Neal

Full title: Arthur Lee NEAL, Plaintiff-Defendant In Rule/Appellee, v. Shirley Ruth…

Court: Court of Appeal of Louisiana, Third Circuit

Date published: Nov 10, 1972

268 So. 2d 723 (La. Ct. App. 1972)

Opinion

No. 4115.

November 10, 1972.

APPEAL FROM 28TH JUDICIAL DISTRICT COURT, PARISH OF LASALLE, HOLMES MOUSER, J.

Sidney A. Marchand, III, of Talbot, Sotile Carmouche, Donaldsonville, for defendant-mover/appellant.

Jimmie C. Peters, Jena, for plaintiff-defendant In rule/appellee.

Before FRUGÉ, SAVOY and DOMENGEAUX, JJ.

ON MOTION TO REMAND

DOMENGEAUX, Judge.

Shirley Ruth Neal, defendant-appellant, filed a motion to remand this suit to the district court for the purpose of retaking certain testimony. The motion is unopposed.

The record of this case has not as yet been lodged with this court. The defendant-appellant in her motion to remand alleges that at the trial of this case unbeknown to all counsel and to the court reporter, the recording device was not properly functioning, with the result that certain indispensable testimony is unavailable for transcription in the record on this appeal. Defendant-appellant attaches to his motion the sworn affidavit of the court reporter which affidavit recites that because of a mechanical malfunction in a recording device used by the court for the first time, the testimony of several witnesses was not recorded, including all of the testimony of the mover (defendant-appellant) and most of the testimony of the defendant-in-rule (plaintiff-appellee). The affidavit further states that it was not until the court reporter attempted to transcribe the testimony that the failure of the recording device became known to either the court reporter or to any of the parties. The court reporter also states that because of the malfunction of the recorder she will not be able to transcribe any of the testimony listed above.

In Grosch v. De Bautte, 228 So.2d 692 (La.App. 4th Cir., 1969), a similar situation was presented. In that case the court reporter had left the state without having transcribed the testimony in a protracted trial. The court citing LSA-C.C.P. art. 2164, and official note (c) thereunder, remanded the case to the lower court for the purpose of retaking the testimony of the witnesses. We consider the ruling in the Grosch case, supra, to be applicable to the case at bar. See also LSA-C.C.P. 2132.

For the reasons assigned, this case is remanded to the trial court for the purpose of retaking the testimony of those parties which due to the malfunction of the recorder is unavailable. The assessment of costs will await a final determination of this litigation.

Remanded.