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Rule 377. Statement of Facts (Mar1941)

TEXT

(a) Testimony. The testimony of the witnesses need not be in narrative form but may be in question and answer form. A party may prepare and file with the clerk a condensed statement in narrative form of all or part of the testimony and deliver a true copy thereof to the opposing party or his counsel, and such opposing party, if dissatisfied with the narrative statement, may require the testimony in question and answer form to be substituted for all or part thereof.

(b) Abbreviation of Statement. All matters not essential to the decision of the questions presented on appeal shall be omitted. Formal parts of all exhibits and more than one copy of any document appearing in the transcript or the statement of facts shall be excluded. All documents shall be abridged by omitting all irrelevant and formal portions thereof.

(c) Promptly after notice of appeal is given and where a request is made of the official court reporter for the preparation of a transcript of all or any part of the evidence adduced on the trial of the case, the appellant shall deliver or mail to the appellee or his counsel and file with the clerk of the court a designation in writing of the portions of the evidence desired, and shall specify the portions desired in narrative form, if any, and the portions desired in question and answer form, if any. Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included.

(d) Approval of Trial Court Unnecessary. It shall be unnecessary for the statement of facts to be approved by the trial court or judge thereof when agreed to by the parties. If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of the proposed statement of facts, the matter shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth.

(e) If either party arbitrarily requires in question and answer form more of the testimony than is necessary, he shall be required to pay the cost thereof, even though he is successful on the appeal.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: Subdivision (c) has been supplied and the original subdivisions (c) and (d) have been relettered (d) and (e), respectively.

ADVISORY OPINIONS

(No. 42) Question: Where there is not a complete statement of facts on appeal will all reasonable presumptions be indulged in favor of the judgment of the lower court as was the rule under the former practice?

Answer: Our correspondent, in support of his view of the law under the former practice cites inter alia: O'Brien v. Hart, 80 S.W.2d 464 (Tex. Civ. App.-Beaumont, 1935); Sawyer v. First Nat'l Bank of Hico, 41 Tex.Civ.App. 486, 498, 93 S.W. 151, 158 (1906); Newnom v. Williamson, 46 Tex.Civ.App. 615, 103 S.W. 656 (1907).

The subcommittee is of the opinion that the presumption referred to would not apply under the new rules.

Our correspondent observes that: "If this same presumption should be indulged under the new rules, we would defeat the very purpose intended to be accomplished by authorizing the filing of only a partial statement of facts."

This observation seems to the subcommittee to be correct in the light of wording in the rules which is now recited.

A main purpose of the rules concerning appeal is announced by Rule 370 in this way:

"In view of the crowded condition of the dockets of the appellate courts, the record and briefs on appeal should be limited as far as possible to the questions relied on for reversal. The primary purpose of the courts is to administer justice between the parties with as little expense and delay as possible. Liberal provisions are therefore made in these rules for amendments' on appeal to bring forward any material matter which may have been omitted. With this protection the bar is expected to cooperate in shortening the records in furtherance of the provisions of these rules."

Pursuant to this purpose, Rule 377, respecting the statement of facts, requires that: "All matters not essential to the decision of the questions presented on appeal shall be omitted."

At a later point the same rule, carrying out this policy, reads that: " ... the appellant shall deliver or mail to the appellee or his counsel and file with the clerk of the court a designation in writing of the portions of the evidence desired, and shall specify the portions desired in narrative form, if any, and the portions desired in question and answer form, if any, and the portions that are desired to be omitted. Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included, specifying the portion desired in narrative form, if any, and the portions desired in question and answer form, if any."

Then there is this further alternative practice looking to the same end:

"Rule 377-a. Statement of the Points to Be Relied On. - For the purpose of inducing the opposing party to accept an abbreviated transcript or statement of facts, the appellant, or the appellee to the extent that he complains of the judgment or any part thereof, may file with the clerk of the trial court a statement of the points on which he intends to rely on appeal; and he shall thereafter be limited to such points."

It will be seen from these rules that the appellee may readily get into the statement of facts anything that the appellant omits. For this reason and in order to encourage curtailment of the statement of facts, it seems to be within the purpose of the' rules to depart from the old presumption.

If it should be that either of the parties omits something that should be in the statement of facts, there are liberal provisions in the rules for amendment even after the statement of facts gets into the appellate court. One of the rules to this end is 428. It reads:

"If anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court, either before or after the record has been transmitted to the appellate court, or the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter."

Another of the rules to the same end is 437. It applies to the Courts of Civil Appeals, and reads:

"A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of the time for filing transcript and statement of facts except as contemplated by Rule 386." (The exceptions have nothing to do with the present situation.)

Rule 504 applies to the Supreme Court and is to the same effect.

So that, the subcommittee agrees with its correspondent's views when he says in concluding his letter:

"In view of the abundant provisions contained in the new rules authorizing the appellee to designate any additional matter which he desires to have brought up on the statement of facts, and further provisions allowing him to supplement the statement of facts later, if necessary, the old presumption should not prevail."

5 Tex. B.J. 236 (1942) reprinted in 8 Tex. B.J. 17 (1945).

(No. 56) Question: Do the new rules allow a part of a pleading to be left out of the transcript? Is it permissible to omit from the transcript exceptions contained in a pleading that are not material to the points to be raised on appeal?

Answer: It is our opinion that the above questions should be answered in the affirmative.

Where the parties enter into a written stipulation as to what the transcript or statement of facts shall contain, Rule 375 expressly makes such a stipulation controlling. Rules 376, 377, and 378 also recognize the controlling effect of any agreement of the parties in preparing the record. Therefore it is clear that by written agreement any part of any document can properly be omitted from the transcript.

Even where there is no written agreement by the parties, it is our opinion that exceptions or portion of a pleading that are not material to the points to be raised on appeal can properly be omitted from the transcript. Rule 370 shows that it is the spirit and purpose of the rules to abbreviate the record as much as possible and to omit therefrom all matter not material to the appeal. Rule 376 provides for the inclusion in the transcript of "the material pleadings," and we feel that when this is construed in the light of the general spirit of the rules it authorizes the inclusion of only a part of a pleading when the other part is not material to the questions involved in the appeal.

Where the appellant desires that only a portion of a particular pleading be included in the transcript his written designation should set out clearly what parts or paragraphs of the pleading he desires included, or if more convenient he could set out which parts or paragraphs of the particular pleading he desires omitted as being immaterial to the appeal. The appellee can then request that all or parts of the omitted matter be included, should the appellee deem said parts material to his contentions on the appeal. Of course the pleadings should not be garbled or deletions made in such a manner as to affect the meaning of the portion that is included in the transcript.

5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 23 (1945).

(No. 69) Question: Does the answer in No. 42 on Page 236 of 5 Tex. B.J. undertake hold that all presumptions in favor of the judgment of a lower court are to be done away with?

Answer: No. The intention was to say that there will be no presumption that matter omitted from the statement of facts sustains the judgment.

5 Tex. B.J. 428 (1942) reprinted in 8 Tex. B.J. 27 (1945).