On January 6, 1936, this case was remanded to the district court for a new trial, for the reasons stated in the opinion reported in
The case was again tried in the district court, testimony adduced, and there was judgment rejecting plaintiff's demands. The case was again appealed to this court.
Stenographic notes were made of the evidence adduced at the second trial, but these notes were never transcribed. According to a certificate made by the clerk of court, which we find in the record, the stenographer who took the testimony left the state soon after the trial and now resides in the city of Washington, D.C. The clerk of court certifies that the stenographer has informed him that his stenographic notes have been lost. The record before us contains no testimony whatever except certified copies of certain correspondence alleged to have passed between the policy holder and the insurance company. We therefore have nothing before us to review. It does not appear that the absence of the testimony taken at the trial of the case is attributable to appellant. *Page 423
In view of these conditions and circumstances, it is necessary to reverse the judgment and again remand the case for a trial de novo. Code Prac. art. 906; Duprat v. Powell,
It is therefore ordered that the judgment appealed from be reversed and set aside and that the case be remanded to the trial court for trial de novo, all costs, including cost of this appeal, to await the final disposition of the suit.
HIGGINS, J., takes no part.