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Rule 1. Objective of Rules


The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication o the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given liberal construction.

Source: new rule

Oct. 29, 1940, eff. Sept. 1, 1941.


(No. 6) Question: Is a Writ of Garnishment which was issued out of the District or County Court on September 20, 1941, invalid and subject to a Motion to Quash because it is directed to the sheriff or a constable of the county and made returnable to the first day of the next term of court?

Answer: The answer to this question might be either yes or no, depending upon the circumstances. Rules 659 and 661 took effect on September 1, 1941, and they provide that the Writ of Garnishment should be directed to the garnishee and should be made returnable at or before 10 o’clock in the morning of the Monday next following the expiration of twenty days from the date the Writ was served. Inasmuch as the matter is now controlled by rule instead of by statute, and inasmuch as the avowed purpose and intention of the rules is to attain justice between the parties and not to base decisions upon technicality, it should not be held that the irregularities necessarily invalidate the Writ. If the garnishee in fact appeared in court and was in no way prejudiced by the improper direction and return date of the Writ, and if it would work injustice to require strict compliance with the rules in said respect, then under Rules 679 and 814 and under the general discretionary powers of the Court it would be proper to uphold the validity of the Writ. On the other hand, if the circumstances were such as to indicate that the enforcement of the Writ embodying said irregularities would result in an injustice being done, then it would be proper to quash the Writ.

What is said above about Rule 679 would of course, depend upon whether the error here was "clerical," and we feel, under the circumstances of the situation at hand, that it was; and what is said, next, about Rule 814 is conditioned upon the pendency of the action at the time the Rules went into effect.

We desire to stress particularly what we have characterized as the purpose and intention of the new Rules. It is, as we have said, to obtain justice, and is expressed or implied in Rules 1, 370, 434, and 503. It is implemented by Rule 817, for the interpretation of which see Franki's Vernon's Texas Rules of Civil Procedure; The Hudson, 15 F. 162, 175 (S.D.N.Y. 1883); and The Alert, 40 F. 836 (S.D.N.Y. 1889). It is, also, particularly advanced by the doctrine of Stephens v. Herron, 99 Tex. 63, 87 S.W. 326 (1905), that rules of court unlike statutes "are not inflexible" and that if a particular procedure is dependent upon rules as distinguished from statutes, it is "competent for the court so to adapt its exercise as to prevent any particular oppression and to make it yield to the particular circumstances of the case." This doctrine is applied and thoroughly established by the following additional authorities: Mills v. Bagby, 4 Tex. 320 (1849); State v. Scranton Indep. County Line Sch. Dist., 285 S.W. 601, 603 (Tex. Comm'n App. 1926); Albritton v. Commerce Farm Credit Co., 9 S.W.2d 193, 198 (Tex. Civ. App.-Waco 1928); Clifton v. W. T. Thompson & Sons Lumber Co., 100 S.W.2d 392, 394 (Tex. Civ. App.-Waco 1937); Alexander v. Alexander, 100 S.W.2d 420, 421 (Tex. Civ. App.-Waco 1937); Sewell v. Lake Charles Planing Mill Co., 253 S. W. 892 (Tex. Civ. App.-San Antonio 1923); and see Wright v. Traders & Gen. Ins. Co ., 132 Tex. 172, 123 S.W.2d 314 (1939); Silliman v. Gano, 90 Tex. 637, 39 S.W. 559 (1897); and Ashford v. Goodwin, 103 Tex. 491, 131 S.W. 535 (1910).

5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 12 (1945).

(No. 50) Question: Does the plaintiff show good cause in not filing his controverting affidavit within the ten days period (Rules 86 and 87) by proving that defendant failed to furnish him with a copy of the plea of privilege (Rules 72 and 73)? The question is stated in another form: After filing suit can the plaintiff disregard it until he is furnished with a copy of the plea of privilege?

Answer: Rule 72 providing for delivery or mailing to the adverse party or, his attorney of record of any pleading, plea, or motion "which is not by law or by these rules required to be served upon the adverse party" is a wholesome rule and ought to be, and we think will be, readily complied with by the attorneys because of its mutual advantage to them. Nevertheless, the Committee thinks that the Rule is directory and failure to deliver to the plaintiff a copy of the plea of privilege does not dispense with the necessity of the plaintiff's filing a controverting plea; but it may constitute grounds for an extension of the time within which plaintiff should file the controverting plea. Although attorneys have a duty to keep in touch with the developments in their cases, the extent to which they should inspect the records is naturally affected to some extent by Rule 72 requiring the delivery to them by their adversaries of copies of all pleadings, pleas or motions filed in the case.

Under Rule 5, which permits the enlargement of the time within which a specified act is required or allowed to be done, and the liberal construction required by Rule 1 to be given to all the rules in order to adjudicate "the rights of litigants under established principles of substantive law," a wide discretion is vested in the courts in dealing with questions of the character raised in your inquiry. We are of opinion that the courts have the power, upon consideration of all the facts and circumstances, and in the interest of justice, to permit a controverting affidavit to be filed after the expiration of ten days from appearance day upon compliance by the plaintiff with the provisions of Rule 5. When requests for enlargement are applied for under this Rule each case, must necessarily be determined by the court upon its own facts in accordance with the right of the case.

Ordinarily, where the plaintiff and his attorney have no notice or knowledge of the fact that a plea of privilege has been filed, and the defendant has failed to deliver a copy thereof as required by Rule 72, we would be inclined to feel that this would constitute good cause under Rule 5 for granting of an extension of time for the filing of a controverting plea. This would not render nugatory and void that part of Rule 86 quoted in correspondent's letter, as the filing of a controverting plea would still be a prerequisite to the overruling of a proper plea of privilege. It would merely have a bearing upon the time within which the controverting plea could be filed.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 24 (1945).

(No. 62) Question: Where a transcript, containing findings of fact and conclusions of law, has been filed in the Court of Civil Appeals within the sixty days' time prescribed by Rule 386, but no statement of facts has been filed within such time, if, pursuant to a stipulation, a statement of facts is afterward tendered to the Clerk of the Court of Civil Appeals for filing which shows the evidence upon which the judge made his findings, is it the duty of the clerk to file such statement of facts?

Answer: We consider that the correct answer is in the negative. While a stipulation without order of court will of itself justify the filing of a supplemental statement of facts, on authority of Rule 428, the tardy filing of an entire statement of facts can only be had upon order of the court, which in such respect, as a relaxation of the applicable period of limitation that was imposed for the purpose of expediting appellate business, has a discretion to grant or refuse the motion. See Rules 437 and 386, Vernon's Ann. Civ. St.,

Art. 1839, 2 Tex. Jud. C. Rep. 4-5, and 18 Tex. Law Rev. 8 and Plate III. That the filing in the present instance was stipulated would doubtless be a cogent reason for granting the motion if timely made. That findings of fact were in the instant transcript might formerly have indicated some sort of an election to go up in that way, but under the present Rules that fact would not weigh against the filing of the statement of facts since the policy of the Rules is not to punish missteps and changes of plan but to reach the merits of Appeals. Rules 1, 370, 386, 428. In our opinion, however, none of these considerations is for the clerk. He has no authority to file a tardy statement of facts, of which no part has been filed in time, unless his Court so orders.

5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 26 (1945).

(No. 55) Question: 1. Where an application for writ of error was filed and granted before the rules became effective, may the Supreme Court after such rules have become effective properly dismiss such an application without allowing an amendment, upon the ground that jurisdiction because of conflict of decisions is not correctly shown, and properly overrule a motion to amend in such respect?

2. How and under what circumstances may an application for writ of error in the Supreme Court be amended?

Answer: Rule 814 insofar as it is applicable reads: "These rules shall take effect on September 1, 1941. They shall govern all proceedings in actions brought after they take effect and also further proceedings in actions then pending.... "

We are of the opinion that motion to amend, as well as the overruling of such a motion and the dismissal of a writ of error, would be "further proceedings" as contemplated by the above rule.

Rule 1 requires that the rules be given a liberal construction "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." It is the clear intent of Rules 481 and 504 that the appellate courts should allow reasonable amendments at any time to correct or amend defects or irregularities in want of form. Rule 437, which is applicable to the Courts of Civil Appeals, provides, in substance, that a judgment should 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 time for filing transcript or statement of facts except as contemplated by Rule 387." Rule 504, which specifically applies to the Supreme Court, is to the same effect as Rule 437, which, as stated, applies to actions pending in the Courts of Civil Appeals.

The committee strongly believes that Rules 437, 481, and 504 mark an advanced step in procedure, and that compliance with them will enable the courts in the future to dispose of cases on their merits and reduce to a minimum dismissals for technical procedural defects.

No purpose stands out in the rules with greater prominence than this, viz.; that the attainment of justice, according to the principles of substantive law, is the desideratum in every case; that the rules of procedure should expedite, and not frustrate, the trial of cases on their merit and that irregularities either in matters of form or substance should be, disregarded unless such indulgence and liberality will result in injustice.

Cochran v. Wool Growers Central Storage Co., 140 Tex. 904, 166 S.W.2d 904 (1943), which passes upon a motion to amend an application for writ of error is, we think, in accordance with the above views.

Where the question is raised as to whether the court should dismiss a granted writ of error because of fault in the wording or showing of the application we think that Rule 504, already cited; mandatorily conditions such an order upon the allowance of amendment, for such rule, insofar as here applicable, reads:

"The Supreme Court will not affirm or reverse a judgment or dismiss a writ of error 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... "

This mandatory provision for amendment only applies, however, where, the court bases its action upon some such fault.

For a feasible practice in this connection see Hodo v. Mexican Nat'l R.R. Co., 88 Tex. 523, 524, 32 S.W. 511 (1895), and Hilliard v. White, 88 Tex. 591, 593, 32 S.W. 525, 526 (1895).

6 Tex. B.J. 20 (1943) reprinted in 8 Tex. B.J. 30 (1945).

(No. 80) Question: If the officer serving a citation fails to endorse “the date of delivery" upon the copy of the citation which is delivered to the defendant as required by Rule 106, does the trial court have jurisdiction to the extent that a judgment by default can be taken, provided the service was correct in other respects?

Answer: In our opinion the failure of the officer to endorse the date of delivery upon the copy of the citation delivered to the defendant does not affect the jurisdiction of the trial court to' render a default judgment.

Such endorsement does not constitute a part of the citation itself, and it is merely for the convenience of the defendant to relieve him from the uncertainty of his own memory or from the inconvenience of referring to the officer's return in order to make sure of the date of service. The fact that Rule 107 precludes the rendition of a default judgment until the officer's return shall have been on file with the clerk for ,at least ten days, assures to the defendant and his attorney ample opportunity to make certain of the date of service, in event the officer fails to note said date on the copy delivered to the defendant. This provision tends to show that the notation of the date on the defendant's copy is not mandatory in the sense that failure to comply therewith would invalidate the service. In our opinion a default judgment is valid notwithstanding the officer fails to make said notation on the copy delivered to the defendant.

In this connection, however, we feel that if the defendant seasonably moves to set aside the default judgment and shows that he was in fact injured or misled by the officer's failure to endorse the date of service upon his copy, in such a case the trial court should set aside the default judgment and give defendant an opportunity to appear and have a trial on the merits. This would be in harmony with Rule 1 and with the general spirit of all the rules which indicates that the rules should be so construed as to attain real justice between the parties.

6 Tex. B.J. 20 (1943) reprinted in 8 Tex. B.J. 30 (1945).

(No. 103) Question: “Rule 751, one of the special rules for forcible detainer cases, does not set any appearance day but gives the case precedence on the County Court docket. Does not Rule 571 make appearance day as to such cases the first day of the next term of county court in the event of appeal from the justice of the county court?

Answer: Yes. See opinions of this subcommittee, 5 Tex. B.J. 53 (3 rd opinion) and 168 (No. 21) We beg, however, to call to your attention the fact that this rule is reversed by the amendment to Rule 753 which will come into effect at the end of the present year (1943). That amendment reads, "Said cause shall be subject to trial at any time after the expiration of five full days after the day the transcript is filed in the county court, and if defendant shall fail to enter his appearance therein before the case is called for trial, the allegations of the complainant may be taken as admitted, and judgment by default may be entered accordingly."

6 Tex. B.J. 500 (1943) reprinted in 8 Tex. B.J. 37 (1945).

(No. 108) Question: What is the effect of that portion of Rule 751 providing that forcible entry and detainer suits which have been appealed to the county court "shall be entitled to precedence in the County Court ?"

Answer: This matter was touched upon but not dealt with fully in sub-committee opinion No. 84 appearing in 6 Tex. B.J. 76. It is the opinion of the sub-committee that every court necessarily and inherently has some discretion in the arrangement of its docket and the setting of cases for trial. The Statutes and Rules giving "precedence" to certain types of cases do not mean that the court can transact no other business until all such cases pending on the docket are disposed of. Such Statutes and Rules should be given a reasonable construction and a construction calculated to attain justice (Rule 1); and therefore where the application of the exact wording in regard to giving certain cases precedence would result in injustice, it is within the discretion of the court to relax the requirements sufficiently to avoid such injustice.

6 Tex. B.J. 550 (1943) reprinted in 8 Tex. B.J. 38 (1945).

(No. 124) Question: Vernon’s Ann. Civ. Stat., Article 200a, Sec. 6, provides that it shall be the duty of a district judge to extend the regular terms of his court to dispose of pending litigation. Now if a civil case is on file during the regular term, but service is not completed during the regular term, and the term is extended to dispose of pending litigation and service is completed within the term as so extended, is this case subject to being called for trial during the extended term in view of Rule 237 defining appearance day and Vernon’s Ann. Civ. Stat., Article 1920 providing that no new civil case can be brought to a special term of the district court?

Answer: The case, in our opinion, may be called for trial and disposed of during the extended term.

The question correctly states the pertinent warding of Articles 200a and 1920. The governing intention of Article 200a, as well as that of the Administrative Judicial Districts Act of which it is a part, is to dispose of pending business and the words "pending litigation" as used in the article fairly have that meaning. The Supreme Court used the phrases as though synonymous in Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S. W.2d 561 (1937), and the Court of Civil Appeals, in Morse v. Hoover, 105 S.W.2d 682 (Tex. Civ. App.-Amarillo 1937), assumed that a contest of a plea of privilege, as yet immature because of want of service, was within the statute. So that a case which has been filed during a regular term is in our opinion "pending litigation," although service has not yet been perfected in it.

Looking to the rules, one finds from Rule 101 that in a personal action such as is involved in the question, a defendant is required to answer on the first Monday after the expiration of twenty days from the date of service; from Rule 237 that if this day is "in term time, such day is appearance day as to him" but if it is "in vacation, he shall plead or answer accordingly, and the first day of the next term is appearance day as to him;" from Rule 238 that on appearance day of a particular defendant "and at the hour named in the citation, or as soon thereafter as may be practicable," the case shall be called by the court, etc., or on the request of plaintiff's attorney; and from Rule 239 that "upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed his answer."

While strictly viewed, these rules only force defendant to trial or default, in the instant situation, at the next regular term, liberally interpreted in the light of Rule 1 and of the purpose of the act at hand, they are saying this: the defendant must file answer within the time mentioned in his citation whether the last day falls in vacation or in term time. If it falls in vacation default can only be taken at the next term because the court can only give a judgment in term time. If, when it arrives, there is a term, the defendant may be compelled to submit to trial if he has an answer on file, or otherwise to default.

This liberal interpretation seems to be the correct one to apply.

We think that, the prohibition of "new civil cases" in the statute about special terms is not applicable here because that is a different sort of a term. Yet even new civil cases are there triable in instances of appearance (Browder v. Memphis Indep. Sch. Dist., 107 Tex. 535, 180 S.W. 1077 (1915)) and would be triable by compulsion, as criminal cases are, except for restrictive wording in the statute.

No such restriction appears in the statute for extended terms.

It should be added, though the question does not involve the situation, that the Browder case above cited would be sufficient authority for defendant's forcing a trial or submitting to a trial by appearance or otherwise at a term of court which, as in the instance of the present extended term, allows the disposition of pending litigation.

7 Tex. B.J. 152 (1944) reprinted in 8 Tex. B.J. 46 (1945).