Weinstein

Plaintiffs and appellants Sanford M. Weinstein and others sued defendants and respondents E. F. Hutton & Co., Inc., and others to recover investment losses, asserting various theories of fraud, misrepresentation, negligence and breach of fiduciary duty. After a three-day nonjury trial, the court entered judgment in favor of respondents. Appellants appealed that judgment, but then discovered that the reporter’s transcript on appeal could not be completed because the reporter’s notes of the first day of trial were lost.

Appellants moved the trial court to grant a new trial under Code of Civil Procedure section 914 on the ground of the loss of the reporter’s notes. The trial court denied the motion for new trial. Instead, the court ordered that the witness who previously testified on the first day of trial testify again, and that a transcript of this new testimony be added to the transcript of the second and third days of trial in order to “complete” a record for the appeal. Appellants appeal from the trial court’s order denying their motion for new trial.

We hold the procedure adopted by the trial court is not authorized. The permissible solutions to the problem of the…