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Advisory Opinions of Subcommittee on Interpretation of the Texas Rules of Practice and Procedure in Civil Cases - January, 1942 - December, 1948.

The Advisory Opinions through No. 134 were rendered by Randolph L. Carter, Wm. A. Vinson, Allan D. Montgomery and Judge Robert W. Stayton, Chairman. Opinions after No. 134 were rendered with Wm. A. Vinson as Chairman. Opinions written in 1947 were rendered by Wilford N. Naman, Chairman, Allan D. Montgomery, and Lloyd E. Stiernberg. Opinions written in 1948 were rendered by R. M. Wagstaff, Chairman, J. Earl Cox, Wilford W. Naman, and Lloyd E. Stiernberg.

NOTE: The following opinions were scanned and converted to text. All effort was made to duplicate the opinions as accurately as possible, however, the case citations were verified and corrected where necessary.

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Rules 85, 121, 169

Question: Are requests for admissions under Rule 169 applicable to a hearing on a plea of privilege and controverting affidavit?

Answer: Yes. Requests for admissions under Rule 169 may be made "at any time after defendant has made an appearance." Under Rule 85 one form of an appearance by the defendant is by an answer which "may consist of pleas of privilege," etc. (Cf. Rule 121) The purpose of the rule is to require admissions of parties as to uncontroverted facts and dispense with proof thereof, and it is applicable to every step in the proceedings after appearance.

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Rules 169, 170

Question: Do Rules 169 and 170 of the Texas Rules of Civil Procedure authorize a litigant to require admissions or denials of any relevant facts, even though such facts are not contained in any written documents concerning which discovery is sought?

Answer: "Under Rules 169 and 170 (c) any relevant matters of fact may be presented to the opposite party for admission or denial, even though such matters of fact are not related to any document."

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Rule 101

Question: Where a copy or copies of the petition are furnished under amended Rule 101 prescribing .the requisites of the citation, is the district clerk entitled to the fee, for comparing copy with original, prescribed by Revised Statutes of 1925, Article 3928, as amended by Acts 1941, 47th Legislature S. B. No. 269?

Answer: Yes, the amended article implies that the comparison is to be made and the fee charged and it prevails over the rule.

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Rules 4, 101

Question: Rule 101 reads that the citation shall command the defendant to answer on "the Monday next after the expiration of twenty days from the date of service thereof." If the twentieth day falls upon Sunday, will defendant be required to answer on the Monday immediately following or will he be justified in awaiting the second Monday in view of Rule 4 which reads that, in computing "any period of time" prescribed or allowed by the rules "the last day of the period" is to be "included unless it is a Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday”?

Answer: Defendant will be required to answer on the Monday immediately following the expiration of the twenty days because the time between service and answer is a traditional period in Texas procedure and seems to be the principal interval which Rule 101 has in view. In reason the last day of the intermediate twenty-day period is not within the purview of Rule 4 for the above reason and for the further reason that nothing has to be done on that day that requires the presence or aid of an official who would normally be unavailable on a Sunday or legal holiday.

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Rule 686

Question: Does the provision of Rule 686 to the effect that when a temporary restraining order is issued "accompanied with a true and correct copy of the plaintiff's petition" and dispensing with the necessity of attaching a copy of the plaintiff's petition to the citation in the original suit, require that the clerk's certificate of a true copy be attached to the copy of the petition accompanying the temporary restraining order?

Answer: Yes. Rule 686 carried forward with minor textual changes Article 4655 of the Revised Statutes of 1925 and adopted the interpretation of, and prevailing practice under, the statute. So construed the clear intendment of Rule 686 is that the copy of the petition accompanying the temporary restraining order must be certified by the clerk as being "a true and correct copy."

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Rules 2, 101

Question: In tax suits should citations be returnable and the defendant be cited to answer on the first Monday after the expiration of twenty days from service as required in Rule 101, or should the citations be returnable to the next regular term of court?

Answer: By virtue of the last sentence in Rule 2, Articles 7328.1 and 7345b, Section 3 (d), specifically stating the requisites of citations in tax suits, are continued in effect; and the citations issued in such cases should be returnable to the next term of court and otherwise conform to the provisions of the aforesaid statutes.

No opinion is given upon whether, in such a suit, a citation returnable according to Rule 101 would also be valid.

5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Rules 84, 166, 175

Question: Was the repeal of Article 2013 at the time of the adoption of the Rules on September 1, 1941, intentional?

Answer: Yes. Article 2013 required that dilatory pleas be disposed of during the term at which they were filed. Rules 84, 166, and 175 require them to be disposed of before the trial on the merits. The tendency is to depart from term time as a limitation upon procedural steps, and the requirement of disposition before the trial on the merits is thought to be a sufficient deterrent of dilatory tactics.

5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Rule 751

Question: In case of appeal from justice to county court, in an action of forcible entry and detainer may the matter be tried promptly in the county court, if then in session, or may it be properly delayed until the opening of a new term in the latter court in accordance with the usual practice under R. S. Art. 3989?

Answer: Art. 3989 allowing delay in such a matter until the opening of the next term of court, or even later, has been superseded by Rule 751 which drops such avenue of delay and requires the justice to transfer the cause, in case of appeal, within not less than six days and the county court to give the cause precedence. It follows that the justice must effect the transfer promptly and that, if in session when the matter arrives there, the county court must give a trial as promptly as may be practicable, without regard, in either instance, to the opening of a new term.

5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Rules 364, 657

Question: In case of appeal from an entire judgment for damages can a part of such judgment be superseded by Rule 364, and if such a judgment is not superseded, may it be the basis of garnishment upon judgment as provided for in R. S. Art. 4076 and Rule 657?

Answer: Rule 364, Subd. a, requires the bond to be in the amount of the judgment and contains no exception that would allow supersedeas of a part of an entire judgment for damages where appeal is taken from such judgment.

Rule 657 expressly makes such a judgment "final and subsisting for the purpose of garnishment from and after its date of rendition, unless a supersedeas bond shall have been approved and filed."

5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Rule 101

Question: Is the twenty days mentioned in Rule 101 twenty days from and including the date or service of citation, or is the date of service not counted and the time construed to mean on the first Monday after the expiration of twenty full days exclusive of the day of service? Concretely, where citation was served on January 6, would a default judgment on Monday, January 26, be proper?

Answer: Under the provisions of Rule 101 twenty full days must elapse between the date citation is served and the Monday upon which the defendant is required to answer. The date of service is not to be counted in computing the twenty days.

Where citation is served on January 6 the defendant would not be required to answer on Monday, January 26, because there are not twenty full days between January 6 and January 26. Accordingly a default judgment could not be taken against the defendant on Monday, January 26, when he was served on January 6.

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Rules 101, 237, 238, 239

Question: Notwithstanding Rule 101 requiring answer at or before ten o'clock a. m. of the Monday next after the expiration of twenty days from the date of service, may a defendant, in case such time of answering falls in vacation, postpone his answer until the following term, without risk of default judgment by reason of such late filing, provided the answer is filed promptly at the opening of the term?

Answer: We think so. Under Rule 239 judgment by default can only be entered in term time. Under Rule 237 appearance day as to a defendant who is required to answer on a day in vacation is the first day of the next term. Under Rule 238 the docket is called for default on such appearance day, at ten o'clock a. m., or as soon thereafter as may be practicable, and under the cited rules default judgment can only be taken where there is no answer on file at the time of the call of such docket, whether such call be at such proper time or at a later time that is not in vacation. Note, however, that the second paragraph of Rule 237 provides for vacation procedure in instances of removal to federal court.

This construction of the rules is aided by the past decisions upon the subject, that, notwithstanding a defendant, even in term time, fails to file his answer by the time for default judgment, such judgment cannot be taken against him, if he files an answer before the default is actually taken. See Moore v. Janes, 6 Tex. 227 (1851); Ellett v. Britton, 6 Tex. 229 (1851); Hurlock v. Reinhardt, 41 Tex. 580 (1874); World Co. v. Dow, 116 Tex. 146 (1926).

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).

Rule 268

Question: What is the distinction between a demurrer to the evidence and a motion for an instructed verdict?

Answer: The Rules of Civil Procedure do not make any provision for demurrers to the evidence. In view of the fact that such Rules provide for a motion for a directed verdict, but make no provision for a demurrer to the evidence, the common law practice of demurring to the evidence is not a recognized mode of procedure in Texas.

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).

Rules 266, 269

Question: In what instances is the defendant entitled to the opening and closing argument?

Answer: This question is answered by Rules 266 and 269. These rules provide that the plaintiff shall have the right to open and close the argument, except (1) where the burden of proof on the whole case under the pleading rests upon the defendant, or (2) where the defendant has the burden of proof on all matters which are submitted by the Court's Charge to the jury, or (3) where the defendant, before the trial commences; files and enters upon the record a written admission that the plaintiff is entitled to recover as set forth in the Petition except insofar as he may be defeated in. whole or in part by the allegations of the Answer constituting a ground of defense upon which the defendant has the burden of proof.

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).

Rule 306

Question: Does Rule 306 require the trial court's judgment to recite sufficient facts to show upon what ground or grounds the judgment is predicated in a trespass to try title suit?

Answer: No. Rule 306 is merely a carrying forward of old district and county court Rules 63 and 64, and that portion of said rule which provides that the judgment "shall carefully recite the finding of the jury, or the findings, if more than one, upon which the judgment of the court is based" has special application to a recitation of jury findings, and does not require the court to insert in his judgment the fact findings made by the court when the case is tried without a jury.

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).

Rules 293, 306

Question: Does Rule 306 require that all special issues and the answers of the jury thereto be included in the judgment?

Answer: Rule 306 embodies, without substantial change, old Rules 63 and 64 for the District Courts which were in effect for many years (142 S.W.; 145 S.W.; and 159 S.W.). It was not essential under the old rules and statutes that the verdict be copied in the judgment, but it was commended as the better practice. Weathered v. Meek, 258 S. W. 516 (Tex. Civ. App.-Waco 1923); 25 Texas Jurisprudence, pp. 448 and 449. See also Kinney v. Tri-State Tel. Co., 222 S. W. 227, 230 (Tex. 1920), as to the essential requirements of a final judgment. The policy of the law is now, and has been for many years, that the verdict be preserved in a permanent record (old statute 2205; Rule 293). While it is not essential to the validity of the judgment, the better practice is to incorporate the special issues and answers in the judgment, which if done, will comply with Rule 293 and dispense with the necessity of again copying the issues and answers in the minutes.

5 Tex. B.J. 96 (1942) reprinted in 8 Tex. B.J. 8 (1945).

Rules 364, 365, 366, 368

Question: Under Rule 364, subdivision (a), providing that appellant desiring to suspend the execution of a judgment may do so by giving a bond “in a sum at least the amount of the judgment, interest and costs," how is the provision for interest to be taken care of when the rule does not prescribe the amount of interest or the length of time for which interest shall be paid?

Answer: Rules 364 and 368, both inclusive, should be considered together. The condition of the supersedeas bond is that appellant will perform the judgment, sentence or decree of the appellate court "and pay all such damages as said court may award against him." The intent is that, pending the appeal, the supersedeas bond shall always be in an amount and with sufficient sureties to enable the appellee to collect the judgment against the appellant and his sureties if it is affirmed. The bond should, therefore, be “in a sum at least the amount of the judgment" plus an estimated amount of interest, which will probably accrue during the appeal at the rate prescribed in the judgment, plus the estimated amount of the costs. Rules 365 and 366 prescribe an adequate remedy to the appellee if the bond in the first instance is not adequate or if pending the appeal it becomes insufficient either as to amount or as to the sureties.

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 9 (1945).

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Rule 169

Question: Under Rule 169 is (1) the filing of a plea of privilege an appearance in the cause; and (2) if after filing a plea of privilege a request for admissions is made under Rule 169, will compliance therewith constitute a waiver of the plea of privilege?

Answer: (1) It is our opinion that the filing of the plea of privilege is an appearance, in the cause. It is a form of answer. An answer, or any part, thereof, filed in the cause constitutes an appearance. Atchison, Topeka & Santa Fe Ry. Co. v. Stevens, 109 Tex. 262, 206 S.W. 921 (1918); Richardson v. Wells, 3 Tex. 223 (1848); Rule, 85. See 5 Tex. B.J. 15.

(2) Under. Rule 169, "after defendant has made an appearance in the cause," requests for admissions may be made by him. If the request for admissions relates to the plea of privilege, it is undoubtedly an appropriate procedure and would constitute no waiver of the plea. Texas Land & Dev. Co. v. Myers, 239 S.W. 303 (Tex. Civ. App.-San Antonio 1922); Howe Grain & Mercantile Co. v. Taylor, 147 S.W. 656 (Tex. Civ. App.-San Antonio 1912); Howeth v. Clark, 19 S.W. 433, 4 Willson 549 (Tex. Ct. App. 1892). See Op. No. 20a, 5 Tex. B.J. 124. If the request relates to the merits, and is made by plaintiff, the defendant nevertheless is required by Rule 169 to comply with the request and therefore he does not waive his plea of privilege by such mandatory compliance; and the admissions therein may be availed of whenever the case is tried on the merits. See Harkness v. Hyde, 98 U.S. 476 (1878).

8 Tex. B.J. 47 (1945).

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Rules 1, 370, 434, 503, 659, 661, 679, 814, 817

(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).

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Rule 169

(No. 11) Question: When a party fails to make any response whatsoever to a proper request for admissions under Rule 169, can such party at the trial of the case deny any relevant matter of fact embodied in said request for admissions, or can said party require his opponent to make proof of any of said matters of fact?

Answer: No. Failure to deliver a sworn denial or a statement setting forth why the matters of fact cannot be admitted or denied, constitutes an admission of all relevant matters of fact embodied in the request for admissions. Such an admission is as binding as admissions made in any other manner in a. judicial proceeding, and the party making such an admission cannot thereafter upon the trial deny the admitted facts, except under circumstances that would release a litigant from any judicial admission.

At the trial it is not necessary to make further proof of the facts thus admitted.

5 Tex. B.J. 124 (1942) reprinted in 8 Tex. B.J. 9 (1945).

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Rules 364, 365, 366, 368

(No. 18) Question: Under Rule 364, subdivision (a), providing that appellant desiring to suspend the execution of a judgment may do so by giving a bond "in a sum at least the amount of the judgment, interest and costs," how is the provision for interest to be taken care of when the rule does not prescribe the amount of interest or the length of time for which interest shall be paid?

Answer: Rules 364 and 368, both inclusive, should be considered together. The condition of the supersedeas bond is that appellant will perform the judgment, sentence or decree of the appellate court "and pay all such damages as said court may award against him." The intent is that, pending the appeal, the supersedeas bond shall always be in an amount and with sufficient sureties to enable the appellee to collect the judgment against the appellant and his sureties if it is affirmed. The bond should, therefore, be "in a sum at least the amount of the judgment" plus an estimated amount of interest, which will probably accrue during the appeal at the rate prescribed in the judgment, plus the estimated amount of the costs. Rules 365 and 366 prescribe an adequate remedy to the appellee if the bond in the first instance is not adequate, or, if pending the appeal, becomes insufficient either as to amount or as to the sureties.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 21 (1945).

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Rule 169

(No. 20a) Question: In case the answer to a request under Rule 169 of the Texas Rules of Civil Procedure respecting requests for admissions of, facts, etc., is unsworn, is the court justified in treating the matters of fact embraced in the request as admitted?

Answer: We think that the general rule is in the affirmative. But there, are some qualifications.

Since this proceeding is to be attended to outside of court, in order that the proponent of the matters of fact may take advantage of the admissions that he obtains, it is necessary that he introduce in evidence the answer (called the "statement" in the rule), and sometimes, both the answer and the request. It is just as though a witness were testifying, insofar as the admissibility and the value of the matter is concerned. If some of the matter is objectionable, and objection is made in proper manner, the court is duty bound to exclude it. If some of it is received without objection, but is valueless under the rules of evidence in force in the State, the court is justified in holding, in fact is duty bound to hold, that the situation is one of absence of evidence. So that our first qualification to the, general rule is that any admission obtained by the procedure must be offered in evidence and dealt with like any other evidence in a case that is tried. Of course, this would enjoin upon attorneys who employ this procedure the precaution to make their questions so simple and unobjectionable as to elicit admissions that may be useful to them under the rules of evidence. More will be said upon this subject in response to the next question.

Another qualification lies in the provisions of the rules for extension of time within which to make a proper sworn response to the request. In any ordinary case counsel for the party making the request will need to demonstrate to the judge that the admission has been obtained. In the present supposed case he will have to show that it has been obtained from the circumstance that the opposite party has not sworn to his answer. Or the judge, in ruling upon the case, will naturally divulge as a defect in the response that affidavit is not attached. Such a suggestion being made, the respondent ordinarily will seek to supply the defect. It may be that the court can allow him to amend. But certainly, within limits, a postponement in order to enable the respondent to file a sworn reply would be within the rules.

If motion for such a postponement is made within the ten day period that is prescribed by Rule 169, the judge may allow the postponement for good cause. If, on the other hand, the ten day period has expired, the movant must doubtless also show good cause for his failure to attach the affidavit. What the rules mean by "good cause" in these situations is advisably indefinite so as not unduly to restrict the court's discretion. Discussion of that subject below, in connection with the consideration of the subject of motion for new trial, will in large part be applicable here.

Another qualification would lie in considerations of waiver or estoppel. If the proponent of the request conducts the trial as though the answer were sworn to or, by his tactics, lulls the opponent into security in that regard, it is altogether likely that he will not be allowed to take advantage of the absence of affidavit.

So that, to the general rule that an unsworn answer in this proceeding is all admission, we think there would, be the qualifications that have been mentioned, namely, that the admission be admissible, if objected to, and "some evidence" whether objected to or not; that in a proper case the court would perhaps be able to allow amendment, or would be able to allow postponement in order that a correct answer might be filed; and that frequently the proponent would by his conduct, obviate objection to an unsworn answer.

Upon the above subjects, see Rule 169; Moore's Federal Practice, pp. 2655, 2660-2662; Koppel Indus. Car & Equip. Co. v. Portalis & Co., 118 Misc. 670, 195 N.Y.S. 24 (1922); Walsh v. Connecticut Mut. Lif Ins. Co. of Hartford, Conn., 26 F.Supp. 566 (E.D. N.Y. 1939); Rules169 and 5; Payton v. City of Big Spring, 157 S.W.2d 975 (Tex. Civ. App.-Eastland 1941); Peterson v. Graham-Brown Shoe Co., 200, S.W.2d 899 (Tex. Civ. App.-San Antonio 1918); Covel v. Smith, 8 So. 850 (Miss. 1891).

5 Tex. B.J. 125 (1942) reprinted in 8 Tex. B.J. 10 (1945).

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Rule 169

(No. 20b) Question: Does Rule 169 contemplate interrogatories that involve "conclusions of fact or conclusions as to the whole matter at issue," such, for instance, as "Do you admit that the plaintiff performed the services required?" "Do you admit that you have not paid for the services?" "Do you admit that you owe plaintiff $56.50?"

Answer: While we cannot definitely pass upon the interrogatories given by way of illustration, because we do not know the issues of the case in mind, and while we would not want to enter into a consideration of the rules of evidence, we are inclined to the view that such interrogatories would be improper in any ordinary state of the issues because they are too broad, involve propositions of law, and, indeed, to some extent, attempt to prove by a witness what a jury or the judge is supposed to decide.

We, however, should observe, that, respecting documents, a question that implies principles of law, would in that particular connection doubtless be proper, because the rule approves it. We refer to inquiry as to the "genuineness" of a particular document.

Upon the above subjects, see same references.

5 Tex. B.J. 125 (1942) reprinted in 8 Tex. B.J. 11 (1945).

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Rule 169

(No. 20c) Question: Assume, in case of unsworn answers to questions under Rule 169, that plaintiff's attorney introduces the questions and answers and asks for judgment; that defendant's attorney, ignorant of the rules, contends that his answers prevent judgment and resists the demand; that the court gives judgment for the plaintiff because affidavit has not been made to the answers; that defendant's attorney is not aware of what has happened except that he knows that judgment has gone against his client; and that afterwards defendant employs other counsel who file motion for new trial, please say whether the trial court should grant a new trial in these circumstances.

Answer: Since the purpose of this Subcommittee is confined to interpreting the Rules, we shall not attempt to go into the general principles of new trial. However, there are some features of the subject that have hearing upon the innovations and changes in the Rules; and these we would treat as best we may.

Material error being ground for new trial, if the merits were probably not reached in your supposed case, and if the judgment depends upon admissions which are valueless under the rules of evidence, a new trial should be granted.

The foremost object of this procedure is to obtain conscious admissions of uncontroverted matter. Plain, simple questions should be put that may be plainly and simply answered without encountering the danger of answering half truths or two or more questions in one, of giving answers that involve points of law, or, in general, of giving answers that are not intended. Ordinarily the questions should be few in number and, of course, they should not be confusing.

Thus restricted, the procedure under the rule can be very useful. Dates, particular happenings, questions like those that may be properly asked of a witness on the stand, are feasible subjects of inquiry, provided, of course, there is a probability that the answers are beyond controversy.

To proceed otherwise not only runs the proponent into the danger of having his matter rejected by the court because the purpose of the rule has been infringed but also because, the rules of evidence being applicable as already observed, the matter may offend such rules. A practical consideration should be stressed also. If the proponent asks improper questions, he will run the risk of obtaining no answers, evasive answers, qualified answers, half answers, or explanations on account of absence of answers - any of which results may thwart his purpose and yet be upheld by the court because of the form of his questions; whereas, if he pursues the proper course and, notwithstanding that, procures no answers, or useless answers, he may in reason expect to obtain from the court the imposition of costs or even attorneys' fees against the respondent for his failure to cooperate.

Then there are discretionary new trials.

Doubtless the court's discretion has been liberalized by the Rules since their object is justice on the merits and since procedure, by them, is designed to be a means instead of an end and an aid instead of an obstruction.

In the present situation there are some features which, according to the state of the record, may or may not be material in behalf of a discretionary new trial. If the case were pending when the Rules came into effect, considerations of substantial justice should control the court in his action on the motion. If it were not pending, and if the merits were probably with movant, these considerations should have weight, if present: that the questions were not of a type that we have described as appropriate to the Rule 169; that the defendant's attorney was misled by conduct of opposing counselor of the judge; perhaps that the procedure lately came info effect; that the misstep was owing to some humanly excusable cause; or even that it was not the result of intentional disobedience of the rules.

Upon the above subjects, see Pridgen v. McLean, 12 Tex. 420 (1854); Evans v. Pigg, 28 Tex. 587 (1866); Rules 320, 321; Koppel Indus. Car & Equip. Co. v. Portalis & Co., 118 Misc. 670, 195 N.Y.S. 24 (1922); Haebler v. Crawford, 232 A.D. 122, 126, 249 N.Y.S. 184, 189 (1931); Moore's Federal Practice, 2653-2655, 2658 ; Hughes' Federal Practice, 212-213 ; Walsh v. Connecticut Mut. Lif Ins. Co. of Hartford, Conn., 26 F.Supp. 566 (E.D. N.Y. 1939); Rule 170; Banca Nazionale Di Credito v. Equitable Trust Co. of New York, 221 A.D. 555, 224 N.Y.S. 617 (1927); 20 C. J. S. 332; Rules 1, 434, 503; Royal Ins. Co. v. Texas & Gulf Ry. Co., 102 Tex. 306, 116 S.W. 46 (1909); Chambers v. Fisk, 15 Tex. 335 (1855); and Craddock v. Sunshine Bus Lines, 134 Tex. 338, 133 S.W.2d 124 (1939).

5 Tex. B.J. 125 (1942) reprinted in 8 Tex. B.J. 11 (1945).

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Rules 751, 753

(No. 21) Question: In view of Rules 751 and 753, may a defendant be forced to trial or a default judgment he taken against him, in the instance of an appeal in a forcible entry and detainer proceeding, before appearance day in the county court?

Answer: There is an apparent inconsistency between Rules 751 and 753. Rule 751, in case of appeal, requires the justice of the peace to file the transcript and the papers in the court having jurisdiction of the appeal "within six days from the date of filing the appeal bond," and continues, "The clerk shall docket the cause, and the trial shall be de novo, and shall be entitled to precedence in the county court." On the other hand, Rule 753 reads: "If defendant fails to enter an appearance upon the docket of the ... county court on appearance day or file answer, before the case is called for trial, the allegations of the complaint may be taken as admitted, and judgment by default may be entered accordingly.”

In our opinion, while the case may be tried in the county court, by consent of the parties, upon its being filed in the county court on appeal during term time, on the other hand, a trial may not be forced or a default judgment taken until appearance day of the term next ensuing after the date the case is so filed in the county court.

5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).

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Rules 39, 42

(No. 22) Question: Where the owner of a portion of a royalty under an oil lease brings suit against the lessee to recover damages because of the breach of implied contract of reasonable development, is it mandatory that all persons who own portions of the royalty be joined?

Answer: This matter is dealt with by Rule 39 which provides that persons having a joint interest shall be joined in the suit. This rule is taken from Federal Rule 19, and under the annotations to the Federal rule it has been held a number of times that the phrase, "joint interest," should be construed to mean those who would be necessary in the sense of indispensable parties under the previous practice.

If under the previous practice all royalty owners were not necessary parties in such a suit, then it is the opinion of the committee that it would not be necessary to join them because of the adoption of new rules. On the other hand, if joinder of all would have been necessary under the old practice, then it is still necessary under the new rules.

The subcommittee calls attention to possible relaxations suggested by and under the conditions stated in Subdivisions (b) and (c) of Rule 39 and in Rule 42.

The subcommittee feels that the above general construction of the rule is as far as it can properly go in answering the question. In other words, the subcommittee feels that it should confine its interpretations to general explanation of the rules, and should not undertake to brief questions arising under the facts of specific cases.

In the above opinion the subcommittee consulted with and was aided by Roy W. McDonald.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).

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Rule 169

(No. 23) Question: If a party sends to the other party by regular mail a request for admissions of fact under Rule 169, is it sufficient proof of delivery for the party mailing the request to testify that he mailed it and that the letter was not returned to him although more than ten days had elapsed since the request was mailed?

Answer: The testimony, if believed by the Judge, will make a prima facie showing of delivery. If it is rebutted, an issue of fact will be raised to be determined by the court as any other issue (See Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (1942), as to the effect of delivery by mail in general.) If delivery by mail is desired, the request should either be sent by registered mail and receipt thereof requested, or, if it be sent by regular mail, the opposite party should be requested to acknowledge receipt at the bottom of a duplicate copy of the request to avoid any controversy on the trial on the point, since the rule contemplates the actual receipt of the request by the opposite party. Interested witnesses should be avoided, as much as possible, because their testimony, even if undisputed, may not be conclusive upon the judge.

5 Tex. B.J. 124 (1942) reprinted in 8 Tex. B.J. 9 (1945).

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Rules 2, 101

(No. 24) Question: In a tax suit is it permissible for citation issued for personal service to be made returnable on the Monday next after the expiration of twenty days from the date of service as provided in Rule 101?

Answer: Yes. The last sentence of Rule 2 provides that all statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in tax suits are continued in effect. Article 7328 provides that the defendants in tax suits "shall be served with process ... as provided by law' in ordinary foreclosure suits in the district courts of this state."

Said Article 7328 relating to procedure in tax suits was not repealed when the New Rules were adopted, and therefore under the last sentence of Rule 2 said procedure in tax suits is carried forward and remains in force, and by virtue thereof citation for personal service in a tax suit may properly be issued in conformity with Rule 101.

According to a previous Opinion (5 Tex. B.J. 53). it was concluded that Article 7328.1, Section 5, which provides a specific form of citation to be used in tax suits, is still valid and in force by virtue of the last sentence in Rule 2. As above stated, however, citation by personal service in a tax suit will also be valid if issued in accordance with Rule 101, thus authorizing a cumulative Or additional form of citation in such a case.

5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).

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Rules 106, 107, 108

(No. 25) Question: Should the official or party making his return on a citation or notice as provided for by Rules 107 and 108 show in such return that the copy delivered to the defendant had endorsed thereon the date of such delivery as is provided for in Rule 106?

Answer: In view of the fact that Rule 107 requires the return to show "the manner of service," we are of the opinion that the return should show that the date of delivery was endorsed on the copy of citation or notice in accordance with Rule 106, because Rule 106 makes such endorsement a part of the manner of service.

5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).

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Rules 15, 699

(No.26) Question: Should a Writ of Sequestration specify when it should be returned by the officer, and if so when should it be made returnable?

Answer: Rule 699 setting out the requisites of a Writ of Sequestration does not expressly state when the Writ should be made returnable, but Rule 15 states that unless otherwise specially provided by law or by the Rules all writs and process "shall be made returnable on the Monday next after the expiration of twenty days from the date of service thereof." Therefore, a Writ of Sequestration should state when it is returnable, and should comply with Rule 15 and be made returnable on the Monday next after the expiration of twenty days from the date of service thereof.

5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 13 (1945).

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Rules 66, 67, 274, 277, 279, 525

(No. 27-a) Question: When a justice court case is appealed to the county court and the pleadings are reduced to writing under Rule 525, do the oral pleadings in the justice court go out of the case to the extent that they cannot be shown?

Answer: In the sense that the oral pleadings go out of the case for the purpose of trial and relief in the county court, we consider that the situation is one like that of amendment: The new pleading takes the place of the old and the old is no longer a part of the case. However, it may become important to show what the old pleadings were in connection with contentions under the statutes of limitation and with contentions that a new cause of action has been set up for the first time in the county court.

It should be added that while, therefore, the written pleadings in the county court are the pleadings upon which the case is tried, if the trial is upon certain proof that is variant from or has no support in the written pleadings, but no objection or the like is made to the variance or departure, Rule 67 applies and it will be as though there had been sufficient pleading. In this connection see also Rule 66 as to ready amendment if objection is made. Doubtless in a case of appeal from justice to county court the rules above cited would not go to the extent of allowing a new cause of action to be set up in the county court or recovered on in the county court; but with this qualification there should be little difficulty about variance or departure. And, of course, by the time of a special issue submission all pleadings relied upon in the submission would have to be in writing, under Rules 67, 277, and 279, unless the defect should be waived under Rule 274.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).

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Rule 237

(No. 27-b) Question: In a divorce case where there is citation by publication may a judgment be taken at a special term, in view of Rule 237?

Answer: The subcommittee feels that its answer should be in the negative for the reason that R. S. Article 1920, which is not repealed, prohibits the bringing of new cases to special terms. While under Rule 237 cases are no longer "brought to a term," the spirit of Art. 1920 is that new cases should not be triable at a special term without defendant's consent, because such practice would be inconvenient or unjust. If a defendant consents to a trial at a special term, the case, however, is different. Upon these subjects see Browder v. Memphis Indep. Sch. Dist., 107 Tex. 535 180 S.W. 1077 (1915), and Guerra v. Guerra, 213 S.W. 360 (Tex. Civ. App.-San Antonio 1919).

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).

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Rules 15, 101, 114

(No. 28) Question: Should a citation by publication contain the direction that if it is not served within ninety days from the date of issuance, it shall be returned unserved as provided in Rule 101?

Answer: Yes. Rule 114 provides that where citation by publication is authorized it "shall contain the requisites prescribed by Rules 15 and 101 insofar as they are not inconsistent herewith." One of the requisites of an ordinary citation prescribed by Rule 101 is the following:

"The citation shall further direct that if it is not served within ninety (90) days after date of issuance, it shall be returned unserved."

It is not inconsistent with requirements of Rule 114 to incorporate this requisite of an ordinary citation in the citation by publication and it should, therefore, be included.

5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 13 (1945).

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Rules 353, 363

(No. 29) Question: What is the effect of the footnote following Rule 353, which states that "Appeal is perfected when notice of appeal is given"; and the footnote following Rule 363, stating that the change by amendment of March 31, 1941, was the addition of the words "or if affidavit is contested, and when the contest is overruled."

Answer: Said footnotes have no effect upon the meaning of these rules.

The original order of the Supreme Court adopting the rules provides that "only the rules themselves are adopted by this Court"; and the order adopting the amendments of March 31, 1941; expressly provides that "The amendments to the notes at the foot of the respective rules are not made as parts of the respective rules." (See BAR JOURNAL, October, 1941, pages 619, 623 and 624.)

The footnote following Rule 353 is incorrect; and the footnote following Rule 363 is incomplete.

As originally adopted, Rule 363 provided that an appeal was perfected by giving notice of appeal, without reference to the filing of the bond, and the footnote so stated. (See Rule 363 in BAR JOURNAL, December, 1940.) Thereafter, on March 31, 1941, the Rules were amended so as to revert to the former statutory requirement of filing the bond as one of the steps in perfecting the appeal; and the footnote to the contrary following Rule 363 was stricken out and a new footnote inserted. The new footnote, however, is incomplete in that it only shows a portion of the added matter and does not reflect the entire change accomplished by the amendment.

When Rule 363 was thus amended on March 31, 1941, the footnote under Rule 353 should have been stricken out insofar as it states that "Appeal is perfected when notice of appeal is given"; and it was merely an oversight that this portion of said footnote was not stricken out.

5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 14 (1945).

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Rule 266

(No. 30) Question: Does the inclusion in Rule 266 of the defense of "adverse possession" as one of the illustrative defenses which the defendant may urge after filing an admission to open and close have the effect of overruling the doctrine of Meade v. Logan, 110 S.W. 188 (Tex. Ct. App. 1908), namely, that in trespass to try title action in statutory form a defendant who files such an admission cannot show title in himself by limitations?

Answer: In our opinion, notwithstanding the admission, the defendant can show title by limitation.

In Meade v. Logan, the plaintiff in trespass to try title alleged that he had title at so recent a date that the period of limitation that was pleaded by defendant commenced before the date of the plaintiff's asserted title. The court held that, for this reason, the admission to open and close served to admit title in plaintiff during the period of limitation, and hence, served to admit defendant out of court. The same result, it opined, would follow where the petition merely alleged title in general, without fixing a date. It also held that limitation was not a plea in confession and avoidance, and hence, did not come within the rule governing admission to open and close.

The above holding with respect to the defendant's admitting himself out of court is substantially contrary to part of the reasoning used by Judge Gaines in, Smith v. Traders' Nat'l Bank, 74 Tex. 541, 12 S.W. 221(1889). In this connection the court there said:

"In admitting the plaintiff's cause of action ‘except insofar as it might be defeated by the facts of the answer,' etc., he does not purport to admit the allegations of the petition, but merely to admit that the plaintiff has a prima facie case, and expressly declines to admit any fact inconsistent with the new matter alleged in his answer."

In our opinion, Rule 266 puts this reasoning into effect, with the following language:

"The admission shall not serve to admit any allegation which is inconsistent with such defense."

Consequently, in a case like Meade v. Logan, while the admission would now make a prima facie title in the plaintiff, it would not admit that title as of such a date as to defeat the defense of limitation.

The other part of the holding of Meade v. Logan is in our opinion answered by the following language of Rule 266:

" ... which defense shall be one that defendant has the burden of establishing, as for example, and without excluding other defenses: accord and satisfaction, adverse possession, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, release, res judicata, statute of frauds, statute of limitations, waiver, and the like."

It will be seen that the rule takes all emphasis away from the idea of "confession and avoidance," and rests the new test upon "burden." Among the examples given is this very plea of adverse possession and others that are not strictly in confession and avoidance but that nevertheless leave the defendant with the burden, for instance, estoppel and fraud.

We consider that under the rule as now worded the admission to open and close will not have the effect that is given to it in Meade v. Logan.

5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 14 (1945).

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Rules 320(a), 325, 330, 330(k)

(No. 31) Question: In order to preserve his right to be further heard in the event a judgment non obstante veredicto in his favor is reversed on appeal, is it necessary for a party to file a motion for new trial in the alternative at the time he files the motion for judgment non obstante veredicto? If such motion is necessary, when does the time begin to run for filing the amended motion for new trial under amend Rule 330(k)?

Answer: It is not necessary for the appellee to file an alternative motion for new trial at the time he files his motion for judgment non obstante veredicto in order to preserve his right to be further heard with respect to any matter shown by the record if the judgment non obstante veredicto in his favor is reversed on appeal. If appellee desires to complain in the trial court or in the appellate court of any matter which will not appear in the record unless through the filing of a motion for new trial, such, motion should be filed (Rule 325). The time for filing the motion or amended motion in courts having a continuous term as defined in Rule 330 (counties like Harris) is regulated by Rule 330(k). Where the term of court is not continuous as defined in Rule 330, the matter is regulated by Rule 320(a). The necessary prerequisite to the right of appellee to be further heard in the event the judgment non obstante veredicto in his favor is reversed on appeal is that he must bring forward in his brief the points of error committed against him on the trial and shown by the record (i.e., those matters required by Rule 325 to be set out in a motion for new trial, and those matters otherwise appearing in the record) which would prevent the affirmance of the judgment even if one had been entered by the trial court in harmony with the verdict. See the decision of the Supreme Court in Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942).

5 Tex. B.J. 170 (1942) reprinted in 8 Tex. B.J. 15 (1945).

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Rule 174

(No. 32) Question: Does Rule 174 authorize the trial court to require a trial of a specified plea in bar or issue (to the exclusion of the other pleas or issues in the case), and then render judgment solely an the issue tried if that issue is found to be decisive of the case?

Answer: Yes. Rule 174 expressly provides that "The Court ... may order a separate trial of any claim, cross-claim ... or of any separate issue.... "

There are instances where certain pleas in bar (such as res adjudicata or release) can be established quickly and with very little evidence; and where it is likely that the decision of such a plea is going to be decisive of the entire case the Rule gives the trial judge the discretionary power to order said issue to be tried first or separately, so as to avoid a long trial on other issues that will probably became immaterial because of the controlling effect of the decisive plea.

Rule 174 is an exact copy of Federal Rule 42; and the Federal Rule has been construed as authorizing the above practice. Bedser v. Horton Motor Lines, Inc., 122 F.2d 406 (4th Cir. 1941).

This rule supersedes such previous decisions as McFarlane v. Griffin, 80 S.W. 2d 1100 (Tex. Civ. App.-Fort Worth 1935), to the extent that they held that the trial judge was powerless to render judgment upon a controlling issue until the entire trial upon all the issues was completed.

5 Tex. B.J. 125 (1942) reprinted in 8 Tex. B.J. 12 (1945).

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Rule 174

(No. 33) Question: If in a particular case a jury is demanded and the jury fee is paid at the proper time, does a party who properly urges therein a dilatory plea that presents a question of fact have the right to a jury trial upon such plea?

Answer: The judge has the discretion to require the trial to be had before the trial of the merits. This is ordinarily the preferred practice, because frequently it will save time and will avoid injecting prejudice into the merits. The former difference between the practice upon a dilatory plea and that on a plea in bar should no longer present difficulty because the practices in this respect are doubtless assimilated by the second subdivision of Rule 174.

The judge also has the discretion, and especially so where issues on a dilatory plea and on one or more pleas in bar are the same, to try the plea along with the case, submitting the dilatory plea first and conditioning the consideration of the case proper upon a verdict or finding adverse to such plea.

The authorities upon which this opinion is based are Constitution, Art. I, Sec. 15,Art. V, Sec. 10; Peck & Hickernell v. Noble Oil & Dev. Co., 267 S.W. 1018, 1020 (Tex. Civ. App.-Amarillo 1924), with which compare Bexar County v. Davis, 223 S.W. 558 (Tex. Civ. App.-San Antonio 1920) (question of law); Landa v. J. T. Stark Grain Co., 40 Tex.Civ.App. 635, 90 S.W. 1181 (1905); Connellee v. Drake, 16 S.W. 175, 4 Willson 146 (Tex. Ct. App. 1890); accord Holmes v. Coalson, 178 S.W. 628, 632 (Tex. Civ. App.-Fort Worth 1915) (after the amendment of 1907); Becker v. Becker, 218 S.W. 542, 544 (Tex. Civ. App.-San Antonio 1920); Howeth v. Clark, 19 S.W. 433, 434, 4 Willson 549 (Tex. Ct. App. 1892); Caswell v. Hopson, 47 S.W. 54 (Tex. Ct. App. 1898); Leahy v. Ortiz, 38 Tex.Civ.App. 314, 85 S.W. 824 (1905); Johnson v. Miller, 163 S.W. 592 (Tex. Civ. App.-Amarillo 1914); Producers' Oil Co. v. Daniels, 249 S.W. 308 (Tex. Civ. App.-Fort Worth 1922); Pecos & N. Tex. Ry. Co. v. Thompson, 140 S.W. 1148, 1151 (Tex. Civ. App.-Amarillo 1911); see Rules 166, 174, and 175, and Question No. 32; and this Subcommittee's answer thereto in Tex. B. J., May issue, 1942; Tynberg v. Cohen, 67 Tex. 220, 2 S.W. 734 (1887); Robertson v. Ephraim, 18 Tex. 118, 122 (1856); Griffin v. Linn, 3 S.W. 2d 148, 150 (Tex. Civ. App.-Amarillo 1928); Randals v. Green, 258 S.W. 528, 530 (Tex. Civ. App.-Waco 1924; City of Fort Worth v. Cotton, 198 S.W. 1015, 1016 (Tex. Civ. App.-Fort Worth 1917); compare Scott v. Clark, 38 S.W.2d 382 (Tex. Civ. App.-Austin 1931); Hartford Fire Ins. Co. v. Shook, 35 S.W. 737, 738 (Tex. Ct. App. 1896); consult also Rules 1, 248, 301, and 330 (g) and (h).

5 Tex. B.J. 170 (1942) reprinted in 8 Tex. B.J. 15 (1945).

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MISCELLANEOUS

(No. 34): Where the solution of a question involves a construction and interpretation of the Rule-making Power Act (H.B. 108, 46th Leg., effective May 15, 1939), and perhaps also of Section 25 of Article V of the Constitution, the subcommittee concludes that the question is outside of its duties, which are concerned only with the interpretation of the rules themselves. For that reason it refrains from expressing any opinion on the question submitted.

5 Tex. B.J. 236 (1942).

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Rule 327

(No. 35) Question: To what extent has Rule 327 effected a change in the procedure concerning jury misconduct?

Answer: A long line of decisions had heretofore established the rule in Texas that when the fact of material jury misconduct was once established by the evidence presented in support of the motion for a new trial, then it would be presumed that this misconduct was prejudicial and the case would be reversed unless the evidence showed beyond a reasonable doubt that the misconduct was harmless and did not affect the verdict ,or findings of the jury.

Rule 327 does away with this presumption of prejudice. Under the Rule a new trial should not be granted because of jury misconduct unless "it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party."

The burden of proving no injury is taken off the appellee; and the burden of affirmatively establishing probable injury is placed upon the appellant as to jury misconduct just as it is in regard to other errors upon which the appellant seeks a reversal of the case.

5 Tex. B.J. 170 (1942) reprinted in 8 Tex. B.J. 16 (1945).

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Rules 72, 75, 817

(No. 36) Question: In view of Rules 72 and 75 are attorneys entitled to withdraw the original drafts of judgments and orders which are on file but which have therefore been placed in the minutes of the court?

Answer: We are of the opinion that since Rules 72 and 75 specify the particular papers to which they apply, and since papers of the type that you mention are not included or fairly implied in those so specified, there is under those rules no prohibition of the withdrawal. However, we know of no authority whereunder an attorney is entitled to withdraw papers of the type now under consideration. As the clerk is the custodian of file papers, it would seem that, except by sufferance of the clerk, nothing in his possession can rightfully be withdrawn by an attorney. It may become very important for the draft of a judgment or order to remain in his custody to the end that the clerk may complete his fee bill (Article 3930), that his accounts may be fully audited, or that the entry may be corrected if not in accordance with the draft. The trial judge can always expressly regulate a matter of this sort by local rules promulgated under Rule 817.

5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 16 (1945).

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Rule 279

(No. 37) Question: Is it necessary for the defendant in a negligence case specially to plead the issue of unavoidable accident to entitle him to an affirmative submission of such issue?

Answer: Yes. Rule 279 provides that a party shall not be entitled to an affirmative submission of any issue in his behalf "where such issue is raised only by a general denial and not by an affirmative written pleading on his part." Defendant's right to present inconsistent defensive theories under the general denial is not cut off by this rule. He may introduce evidence on the point and argue to the jury that the injury and damage to the plaintiff were the result of unavoidable accident. If he desires an affirmative submission of such issue, however, he must plead it. Under this rule the burden of proof is not changed from what it would have been under the general denial. See excerpts from lecture of Judge James P. Alexander and from article of J. B. Dooley quoted on the point in Franki's Vernon's Texas Rules of Civil Procedure, pages 293, 294.

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

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Rules 2, 110, 114, 115, 116

(No. 38) Question: In tax suits is citation by publication controlled by Rules of Civil Procedure 114-116 or by the Statutes?

Answer: Article 7345b, Section 3 (d) specifically states the requisites of a citation which is to be made by publication in tax suits, and this article of the statute also specifically states the manner in which such a citation shall be served by publication and states that the defendant shall be cited to appear on the first day of the next term of court. By virtue of the last sentence of Rule 2, and also by virtue of Rule 110, this article of the statute is continued in effect; and inasmuch as this statute expressly provides for the requisites of such a citation and service differing from the provisions of the Rules it follows that under Rule 110 this statutory procedure for citation by publication in tax suits supersedes the general Rules on the subject of citation by publication. Therefore citations by publication in such cases should be returnable to the next term of court and should otherwise conform to the provisions of Article 7345b, Section 3(d).

However, we call attention to Section 13 of Article 7345b which states that:

"The provisions of this Act shall be cumulative of and in addition to all other rights and remedies to which any taxing unit may be entitled, but as to any particular proceeding brought under this Act, if any part or portion of this Act be in conflict with any part or portion of any law of the State, the terms and provisions of this Act shall govern as to such proceeding. "

It might be held under Subsection 13 that the method of citation by publication provided by Section 3(d) is cumulative of the method provided by Rules 114-116, and that either method is now permissible. However, this involves a construction of the meaning of the statute rather than a construction of the Rules, and it is not within the province of this Subcommittee to pass on such a matter.

5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 17 (1945).

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Rule 751

(No. 40) Question: Should the County Court dismiss an appeal in a forcible entry and detainer suit if the transcript and papers are not filed in the County Court within six days from the date of the filing of the appeal bond as required by Rule 751?

Answer: Rule 751 shortened the time for filing the record in the County Court in order to expedite the disposition of cases of this type. If the transcript and papers are not filed within the specified time the same procedure would now apply as to the dismissal of the case in the County Court as heretofore applied under the statute where the transcript was not filed within the time required by the statute.

Texas Jurisprudence, Volume 26; pages 939-940, states the general rule upon this subject as follows:

"The failure of the justice to file the transcript within the time allowed is not of itself ground for dismissal of the appeal. But after that time has elapsed, the appellant is charged with responsibility for any delay in taking steps to compel the justice to perform his duty, and the appeal may be dismissed in the absence of a prompt application to compel the justice so to perform. Delay in applying may be excused by the circumstances, but promises by the justice, repeated from time to time but unfulfilled, do not excuse a long delay.

"The conduct of both the appellant and appellee on the justice's default is taken into account on a motion to dismiss, and all authorities are agreed that the right to move for dismissal may be waived."

5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 16 (1945).

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Rules 409, 411, 460, 465

(No. 41) Question: Should notice of a motion to certify a question to the Supreme Court under Rule 465 be given to the opposite party by registered mail (Rules 409 and 411) or by postal card under Rule 460?

Answer: Notice of the motion to certify, unless waived, should be given by registered mail. Rule 460 providing for a postal card notice applies only to a motion for rehearing.

5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 17 (1945).

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Rules 5, 370, 377, 377a, 386, 428, 437, 504

(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).

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Rules 87, 384, 816

(No. 43) Question: Are Articles 4662 and 2008 repealed? If so does an appeal lie in temporary injunctions and pleas of privilege?

Answer: It is the opinion of the subcommittee that those portions of Articles 4662 and 2008 which authorize appeals in the specified situations were not repealed by the adoption of the new rules. Accordingly, an appeal will lie from an order granting or refusing a temporary injunction or from an order sustaining or overruling a plea of privilege.

This conclusion is based upon the fact that said portions of the articles are jurisdictional and not procedural. It will be noted that Rule 816 expressly provides that the new rules shall not be construed so as to extend or limit the jurisdiction of any courts. Furthermore the enumeration of repealed statutes indicates that the aforesaid articles were not repealed in their entirety; and in the note following Rule 384 it will be seen that those portions of Articles 2008 and 4662 which authorize appeals are carried for context so as to indicate that said portions of the articles were not repealed; and in the note following Rule 87 it is expressly stipulated that the portion of Article 2008 authorizing appeals is not repealed.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).

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Rule 169

(No. 45) Question: Would a request for an admission of fact under Rule 169 be a waiver of the provisions of R. S. Art. 3716?

Answer: In putting this question, the correspondent adds that there is a line of cases holding that if the opposite party is called to testify or his deposition is taken this will be a waiver of the testimony excluded by the provisions of Art. 3716, R. S.

While the subcommittee has not diligently investigated the proposition of statutory construction which is thus stated, it assumes for the purpose of interpreting Rule 169 that it is correct.

The statute excludes adversary testimony of a transaction with or a statement by deceased unless the witness is "called to testify thereto by the opposite party."

While the Supreme Court in Grieb v. Stahl, 101 Tex. 306 (1908), evidently doubted that a witness was "called," within the intention of this statute, where merely his deposition, developing the transaction or statement in question, was taken, it afterwards, in Allen v. Pollard, 109 Tex. 536, 212 S.W. 468 (1919), definitely held that in such a case he was "called to testify" in that his testimony was made available and only needed introduction in evidence to be evidence.

As has been heretofore said in an opinion, the synopsis of which appears as No. 20a in 5 Tex. B.J. 124, admissions obtained under Rule 169 are not evidence until introduced and received as evidence. Still they are available as evidence. The opposite party has been "called," in the sense of "caused" and has been caused to "testify" in the sense of making an extra-judicial statement which may be introduced in evidence.

Consequently the subcommittee is of the opinion that if the taking of a deposition developing a matter within the bar of the statute serves to waive the bar, the obtaining of such matter by means of Rule 169 has that effect also.

5 Tex. B.J. 237 (1942) reprinted in 8 Tex. B.J. 19 (1945).

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Rule 372(j), (k)

(No. 46) Question: Does subdivision (k) of Rule 372 apply to bystander's bills of exception, said subdivision (k) being the portion of the rule which provides that where there is a conflict between a bill of exception and the statement of facts, the bill of exception shall control?

Answer: It is our opinion that subdivision (k) does not apply to a bystander's bill until the bystander's bill has been found to be correct by the appellate court in the manner set out in the preceding subdivision (j) of said rule.

Before a bystander's bill is filed, the rule provides that the trial judge shall prepare and file a bill of exception which in his opinion correctly presents the ruling of the court. Then the dissatisfied party is allowed to file the rejected bill of exception which said party had prepared provided it is attested by three bystanders. Thus the record contains two inconsistent bills of exception, and therefore subdivision (k) which makes a bill of exception control over the statement of facts cannot be invoked until the appellate court determines which bill of exception is correct.

The rule expressly provides that the truth of such bills of exception shall be determined on appeal from affidavits filed by the opposing parties with reference to the transaction, and in view of a statement in our correspondent's letter we wish to call attention to the fact that the controverting and maintaining affidavits do not have to be made by bystanders but can be made by any person. The court reporter, the attorneys, the clerk, or any person who knows the facts is competent to make such an affidavit. The bystander's bill itself must be attested by three bystanders; but the affidavits supporting or controverting the bill can be made by any person. Therefore it should not be difficult to contest the truth of an incorrect bystander's bill.

After the correctness of the bill of exception has been determined by the appellate court as provided in subdivision (j), subdivision (k) would make said correct bill of exception controlling over the statement of facts. After the bill of exception has been found to be correct upon investigation of the particular point in question we feel that there could be little objection to giving it precedence over the statement of facts.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 21 (1945).

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Rule 169

(No. 47-a) Question: Should the request for admissions under Rule 169 be in the form of a question?

Answer: The request may be submitted either in the form of a statement or a question. The essential thing is that the fact which the party wants admitted should be stated with clearness. See Official Form 25, Federal Rules of Procedure, and Walsh v. Connecticut Mut. Lif Ins. Co. of Hartford, Conn., 26 F.Supp. 566 (E.D. N.Y. 1939).

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 22 (1945).

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Rules 167, 169, 170

(No. 47-b) Question: Is it possible to construe Rule 170 to mean that a court could not tax costs for· failure to comply with Rule 169 unless it should appear that party had also failed to comply with Rule 167?

Answer: We think it sufficiently clear from Rule 170 that the power of the court to tax costs for failure to comply with Rule 169 is not dependent upon a finding that the party has also failed to comply with Rule 167. Federal Rule 37-b and c is the source of Rule 170. The meaning of Rule 170 would be clearer if the last two sentences of subdivision c were written in separate paragraphs as was Federal Rule 37 -b and c. This matter will be reported for clarification if deemed necessary.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 22 (1945).

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Rules 86, 87, 527

(No. 48) Question: Is a plea of privilege wherein the defendant fails to "state ... the post office address of himself or his attorney" as required by Rules 86 and527, sufficient to require a controverting affidavit, in view of the provisions of Rule 87 providing that "such … hearing shall not be had until a copy of such controverting plea ... shall have been mailed by registered mail to the defendant or his attorney at the post office address stated in such plea of privilege at least 10 days before the date set for the hearing"?

Answer: In our opinion the question should be answered in the affirmative, provided the plea of privilege states the county of the defendant's residence and has all the other requisites prescribed by Rule 86 and merely fails to state the post office address of the defendant or his attorney.

The provision of the rule which requires the plea of privilege to state the post office address of the defendant or his attorney does not relate to the sufficiency of the plea as to venue, but was merely inserted in order to facilitate the delivery to the defendant of the controverting affidavit. Therefore the failure to give such post office address might tend to excuse the plaintiff's failure to mail his controverting affidavit to the defendant, but it would not constitute such a fatal defect in the plea of privilege as to eliminate the necessity of the plaintiff's filing a controverting affidavit.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).

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Rules 1, 5, 72, 73, 86, 87

(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).

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Rule 279

(No. 52) Question: Where plaintiff invokes the doctrine of res ipsa loquitur and makes no specific averments, simply pleading that the instrumentality was under the exclusive control of the defendant and that the injury is such as in the ordinary course of things does not occur, if the one having such control uses proper care, - would plaintiff, after the evidence is in, in view of Rule 279, be required to amend his pleadings so as to make specific averments before being entitled to an affirmative submission of the various phases of negligence, or, on the other hand, would he, by reason of having invoked the doctrine of res ipsa loquitur, he entitled to submission of all ultimate fact issues raised by the evidence, without such amendment?

Correspondent in connection with the above question quotes a part of Rule 279 reading that "A party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part."

Answer: The quoted wording of Rule 279 applies to so-called issues that can be raised under the general denial. It does not refer to theories under affirmative pleading either of plaintiff or of defendant, whether general or particular. In the latter respect the rules make no change from the former practice. If under the former practice a plaintiff using general affirmative pleading was entitled to affirmative submission on various phases of negligence he is still entitled to such submission insofar as pleading is concerned. There has been no change here from the standpoint of pleading. However, no such practice can now be required to an extreme, for Rule 279 reads that, "Where the court has fairly submitted the controlling issues ... the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue."

5 Tex. B.J. 288 (1942) reprinted in 8 Tex. B.J. 21 (1945).

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Rule 364(c)

(No. 54) Question: What is the proper procedure to mature the liability of the sureties upon a supersedeas bond given under Subdivision (c) of Rule 364? We understand that this inquiry relates to a case where the defendant gives a supersedeas bond under, Rule 364(c) after a plaintiff recovers a money judgment together with the foreclosure of a lien upon a piece of real estate, and as authorized by the Rule the defendant does not give a full supersedeas bond but gives a bond to cover the estimated rents and hire of the real estate pending the appeal plus court costs.

Answer: It is the opinion of subcommittee that the only change in the previous procedure intended to be effected by subdivision (c) of Rule 364 was to authorize a partial supersedeas which would supersede only that part of the judgment relating to recovery of or foreclosure upon a specific piece of real property.

The liability of the sureties upon such a supersedeas bond, when the judgment is affirmed, is the same as it formerly was upon a bond given under the statute (Article2270), except that the amount of the bond is not double the value of the judgment as formerly required by the statute but is an amount fixed by the trial court "not less than the rents and hire of said real estate" during the pendency of the appeal.

Although the method of fixing the amount of such a partial supersedeas bond is based by the rule upon the rents and hire of the real estate pending the appeal, nevertheless the condition of the bond is the same as set out in subdivision (a) of the rule, namely that the appellant shall prosecute his appeal with effect, etc. If said condition is not complied with, then the liability of the sureties is determined as under any other supersedeas bond, in such cases, not to exceed, of course, the amount fixed by the bond.

There are a number of court decisions relating to the liability of sureties under supersedeas bonds in such cases and relating to the method of "determining the extent of damages sustained by the appellee because of the appeal (see annotations in Vernon's Statutes under Article 2270), but those are matters relating to rules of law and decisions which are not peculiar to the new rules and which do not involve the interpretation of any particular phraseology of the rules.

Therefore this subcommittee feels that it is not within its province to undertake to give an opinion upon the extent of the liability of the sureties in any particular case or upon the matter of how to proceed in any particular case in order to mature the liability of the sureties. In other words, the subcommittee feels that it should confine its interpretations to general explanations of the rules, and that the above general construction of the rule is as far as the subcommittee can properly go in answering the question.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 22 (1945).

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Rules 1, 387, 437, 481, 504, 814

(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).

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Rules 370, 375, 376, 377, 378

(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).

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Rules 2, 15, 101, 819

(No. 57) Question: In view of Rule 819, which declares that procedural statutes not listed in the enumeration of repealed articles shall continue as rules, is Article 4639a, providing for notice of contempt proceedings where a parent has been ordered to support minor children, governed by Rules 2, 15, and 101, the latter two rules requiring process to be answered on the first Monday succeeding twenty days after service?

Answer: We consider that notice of such a contempt proceeding is not governed by general Rules 15 and 101 as to time and that Rule 2 is not inconsistent with this conclusion. This particular matter is special, and favors prompt rather than delayed action because it involves the support of minor children. Since the amendment of the cited article (Acts 1941, 47th Leg., H. B. No. 750) the latter consideration is again emphasized; if the amendment is valid in view of Art. III, Sec. 36 of the Constitution, the judge may even hold the contempt hearing in vacation.

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

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Rules 87, 175

(No. 58) Question: What is the effect of the repeal of Article 2013 on Rule 87 pertaining to a hearing on a plea of privilege? Is it necessary to have the hearing upon the date noted by the judge on the controverting plea in the absence of an agreement to the contrary? After the judge notes the date for the hearing, can it be reset without a formal order if the parties agree upon another date?

Answer: It is the opinion of the subcommittee that the repeal of Article 2013 has the effect of doing away with the previous rule that a plea of privilege is waived if not heard at the term of court at which it is filed. The decisions based upon Article 2013 are no longer applicable.

Under the new rules, if there is no agreement to the contrary, a plea of privilege should be determined before the trial of the case upon its merits (Rule 175). Furthermore, under Rule 87 the court should "promptly" hear the plea; but this general term is directory and does not affect the validity of a delayed hearing.

The hearing on the plea can be had (1) upon the date noted by the judge on the controverting plea, or (2) upon any subsequent date to which the judge may postpone the hearing, or (3) upon any date agreed to by all parties subject to the approval of the judge. In our opinion a separate order approving a postponement is not absolutely essential to the validity of a postponed hearing, but it is certainly the better practice to have any postponement or agreement of the parties shown of record either in a separate order or in the order disposing of the plea.

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

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Rules 5(b), 21, 72, 73, 169

(No. 59) Question: Under the Rule 169 of the Rules of Civil Procedure, assume that a party is delivered a proper request for admissions of fact and does not reply to the same within the time stipulated, and assume further that five days prior to the time that the party has to make his reply his attorney files a motion in the court papers for a ten day extension of time to file a reply and no other notice is given to the adverse party of the filing of such motion, and no action is taken on the motion at the time, and no other motion for an extension of time is made, would the court at the trial of the case over three months thereafter have any authority to permit such party to file a reply to the request for admissions?

Answer: We consider that the court would, under the circumstances at hand, have authority, in the exercise of its discretion, to permit the reply to be filed unless the motion were so worded as not to contemplate an extension at so late a time, and that it would likewise, of course, have the discretion to refuse such permission. Rule 169 gives such authority on motion and notice. Rule 21 requires the clerk on the filing of the motion to make the proper entries concerning it on the motion docket, and renders such filing and entry sufficient notice, since the motion is one in a pending suit. As these entries are to be made by the clerk, any failure to make them is the fault of the clerk. In the fact situation which is supposed in the question, the party demanding the admission has a clear remedy. It is to be expected that within the ten days allowed by Rule 169 he will have come into possession of a copy either of the sworn statement or else of the motion to enlarge the time for filing the sworn statement, because Rule 72 requires the transmission of a copy of any paper of that kind and Rule 73 puts the party in default of that duty in danger of having to pay for a certified copy. If at the end of the ten days' time the party demanding the admission receives no copy whatever, he very naturally should resort to the papers to ascertain whether any paper has been filed. If, instead of a sworn statement as required by Rule 169, he encounters a motion for enlargement of time, as is permitted by such. Rule, he may thereupon request the court to hear the motion, and he may persist in his request until it is heard. Since the efficacy of this whole proceeding is largely dependent upon its completion before the trial commences, it is, of course, to be hoped that the demandant would thus protect himself. The discretion of the court in such a case should be exercised to the end of requiring as prompt a filing of the sworn statement as the circumstances may justify.

It should be added that, in the event respondent's motion is ineffective on account of its wording, a second though more onerous motion could be urged and granted under Rule 169 and subdivision (b) of Rule 5.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 25 (1945).

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Rules 87, 175

(No. 60) Question: At term time the court noted on the controverting plea a date for hearing on the plea of privilege which would fall in vacation, although the business of the court would have permitted a hearing in term time. On the date fixed for the hearing the defendant did not appear. There was no agreement between the parties and the court made no order with respect to the matter. (1) Did the plaintiff waive his right to contest the plea of privilege by not securing the disposition of the issue at term time? (2) Did the court lose jurisdiction except to transfer the case to the proper court as was held under Art. 2013 (Norris v. Gulf Prod. Co., 149 S.W.2d 681 (Tex. Civ. App.-Galveston 1941))? (3) What action should the district court take in the case at the next term?

Answer: (1) and (2). The plaintiff did not waive his right to contest the plea of privilege. Art. 2013 was repealed at the time of the adoption of the new rules (Franki's Vernon's Texas Rules of Civil Procedure, page 629), and the decisions based on that article are no longer applicable. While Rule 87 provides that the court should "promptly" hear the plea of privilege the requirement is directory and does not affect the validity of the delayed hearing. The parties not having agreed to a hearing in vacation on the date fixed by the court (Art. 1915), it necessarily was continued to the next term. (3) At the next term, the case will be pending business. The plea of privilege should then be disposed of before the trial upon the merits (Rule 175).

5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 24 (1945).

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Rule347

(No. 61) Question: In regard to Rule 347 concerning Writs of Certiorari, (1) should the writ embody a paragraph commanding the County Clerk to make a return on the writ showing how it has been executed, and (2) should the return upon the writ be made by the County Clerk or the District Clerk?

Answer: It is the opinion of the Sub-Committee that the first question should be answered in the negative; and that the second question should be answered to the effect that the District Clerk should make the return upon the writ.

The Statute (Art. 936) formerly required the District Clerk to place the writ in the hands of the sheriff or constable who would then serve or cite the County Clerk. Under that situation the sheriff or constable was the officer to make the return and show how he had executed or served the writ.

Rule 347 eliminates the intervention of the sheriff and constable entirely, and provides that the District Clerk shall not only issue the writ but that the District Clerk shall also serve the writ on the County Clerk by delivering it to him in person or by mail. Thus the District Clerk now performs the function heretofore performed by the sheriff, and therefore the District Clerk should make the return that was heretofore made by the sheriff.

The purpose of the return on a writ is to show how the writ has been served. It is not the function of the return to show whether the party cited has complied with the writ. Therefore, the return on a writ is usually made by the officer or person who serves the writ, and not by the person who is served.

Since the New Rule directs the District Clerk to serve the writ himself (instead of placing the writ in the hands of a sheriff or constable to serve it) the return should be made by the District Clerk, showing how and when he performed this duty either by mailing the writ or delivering it in person to the County Clerk.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 25 (1945).

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Rules 1, 370, 386, 428, 437

(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).

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Rule 330(j)

(No. 64) Question: In requiring that Motions for New Trial be "presented" within 30 days after being filed, is it essential under Rule 330(j) that the losing party have the merits of his motion, actually considered by that time; or, without suffering the consequences of such motion being overruled by operation of law, on, the thirtieth day, may, he safely submit it only formally in such period, and have the argument and consideration occur so that the motion is acted on, by the 45 th day after it is filed?

Answer: Subdivision (j) of Rule 330 is an exact copy of Article 2092 subdivision 28, and the provisions of said statute have heretofore been construed a number of times by our courts. Dallas Storage & Warehouse Co. v. Taylor, 124 Tex. 315, 77 S.W.2d 1031 (1934); Millers Mut. Fire Ins. Co. v. Wilkirson, 124 Tex. 312, 77 S.W.2d 1035 (1934); Independent Life Ins. Co. v. Work, 124 Tex. 281, 77 S.W.2d 1036 (1934).

The subcommittee is of the opinion that the provision of the Rule is mandatory that the Motion for New Trial or amended motion must be presented within thirty days after it is filed. The question asks whether a litigant may safely submit the motion "only formally" within such thirty day period and then submit argument to the judge later. In our opinion the presentation, of the motion within the thirty day period, must be unqualified and without reservation. However, the Rule expressly provides that the judge shall have forty-five days from the filing of the original or amended motion within which he may determine the motion, and this forty-five day period may be extended by written agreement of the parties in the case; and we feel that at any time before the judge has handed down his decision upon the motion it would clearly be within his discretion to hear argument from counselor consider authorities should he see fit to do so in order to assist him in arriving at his decision. We do not feel that the hearing of argument or the consideration of authorities after the expiration of thirty days would be inconsistent with the fact that the motion had actually been presented within the thirty day period, if the record showed that as a matter of fact the motion was presented without any qualification or reservation within the thirty day period.

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

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Rule 237

(No. 65) Question: Does the perfection of service upon a defendant in vacation justify judgment by default against a non-appearing defendant at a special term?

Answer: No. See question and answer in No. 27-b 5 Tex. B.J. 287. It may be added that the law does not require personal notice to be given of the calling of a special term and that such circumstance would conduce to the injustice of permitting judgment by default at special terms.

5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 27 (1945).

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Rules 533, 594, 606

(No. 67) Question: What direction respecting the time of return should be contained in a writ of attachment issued out of a justice court? See Rules 533, 594, and 606.

Answer: It is the opinion of the subcommittee that the matter is regulated by the jurisdictional statutes, Articles 275 et seq., and Rule 606. The writ of attachment should therefore direct the officer executing the same to return it to the court from which if issued "at or before 10 o'clock a. m. of the Monday next after the expiration of fifteen days from the date of the issuance of the writ."

The specific rules governing the practice in the justice courts (Rules 523 to 591, both inclusive) do not provide for the time of the return of a writ of attachment but such time is specifically provided for by Rule 606, the source of which is old Article 298 with the return date changed to read from "the first day of the next term thereof" to "at or before 10 o'clock a. m. of the Monday next after the expiration of fifteen days from the date of issuance of the writ." By force of Articles 275, et seq. and Rule 606 the rules relating to ancillary proceedings (Part VI, Rules 529, et seq.) are applicable.

5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 27 (1945).

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Rules 5, 337(a), 370, .377, 386, 428, 437, 504

(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).

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Rule 748

(No. 70) Question: In a forcible entry and detainer suit, after an adverse judgment against a defendant in the Justice Court and the notice of appeal given within two days, should a writ of restitution issue before the five days given to make an appeal bond or should the writ await the expiration of the five days or until the bond has been approved and filed?

Answer: Rule 748 expressly provides that "No writ of restitution shall issue until the expiration of two days from the rendition of the judgment," and the clear implication is that the writ can issue at any time after the expiration of said two-day period. There appears to be nothing in the rules or statutes that would require a withholding of the issuance of the writ of restitution until after the five-day period.

Therefore, it is the opinion of the subcommittee that the writ of restitution could properly be issued at any time after the expiration of two days from the rendition of the judgment.

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

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Rules 122, 523, 739

(No. 71) Question: In a forcible detainer proceeding, the citation was addressed to the sheriff or constable instead of the defendant, as provided by Rule 739. Upon motion of the defendant, the citation was quashed. It is contended on the one hand that this is a special proceeding returnable at a special term of the justice court (Stacks v. Simmons, 58 S.W. 958 (Tex. Ct. App. 1900) and that it is necessary to have issued a new citation. On the other hand, it is contended that there has been a constructive appearance by virtue of Rule 122, and that under the holding of Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895), the justice court is not authorized to apply any other than the ordinary rules of law governing its proceedings, though the only question is possession, and the defendant is in court ten days hence or at least the first day of the next term. Will appreciate if you will advise your interpretation.

Answer: This subcommittee is of the opinion that the quashal would be an appearance and that at the time mentioned in Rule 122, if the justice court is then in session, and, if not, at the succeeding term of such court, the cause should proceed against the defendant.

Rule 122 makes such a quashal an appearance, and though it applies specifically to district and county courts it is, in our opinion, by force of Rule 523, made a part of the procedure in the justice courts in so far as it "can be applied, except where otherwise specially provided by law or ... rules."

We believe it can be applied and have found no conflicting requirements.

In the first case that you cite, as we read it, the Court of Civil Appeals found an inconsistency as between ordinary default judgment and forcible entry and detainer procedure but considered that in other respects the procedure to be applied in prosecuting this remedy was the ordinary procedure of the justice court. In the second of the cited cases the Supreme Court holds that in forcible entry and detainer the justice court is one of general jurisdiction and that its judgment On collateral attack is consequently good as against merely procedural defects. Evidently under each of the decisions ordinary procedure applies as a general rule in forcible entry and detainer.

Rule 122, concerning the effect of a quashal in district and county courts, reads:

"If the citation of service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a. m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him."

There seems to be no reason against applying this article in a forcible entry and detainer suit in the justice court unless it be that the time for taking defaults in justice courts is different from that above mentioned as the date for appearance and answer. We are of the opinion that those two occurrences would not necessarily coincide. For instance, they will not do so, in our opinion, in the district and county courts, themselves, whenever the first Monday, above mentioned, falls in vacation. See our views in 5 Tex. B.J. 95. So that, as we see it, another time for default would not bring about an irreconcilable conflict. The present case, however, is not one of default and, even with more force, we can see no reason against applying to it the appearance rule, above quoted, and. requiring trial without further citation after the quashal of the first citation.

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

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Rule 244

(No. 72) Question: In a suit in trespass to try title numerous defendants are cited by publication. No answer will be filed nor voluntary appearance made by any defendant. An attorney will be appointed by the court to represent them under Rule 244. Is the clerk of the district court entitled to charge 15 cents for entering the appearance of each defendant or only 15 cents for all defendants cited by publication and represented by the attorney appointed by the Court?

Answer: We think the matter is regulated by Article 3927 of the Revised Statutes relating to fees of district clerks which lists, among other charges, the following: "Entering appearance of each party to a suit, to be charged but once - 15 cts." This article was not repealed by the adoption of the rules nor did the rules make any substantial change in any existing statute which affects the decision of the question. The question involves the interpretation of the statute and not of the rules, and is not therefore within the scope of the duties of the committee. We refer, however, to an opinion (No. 2871) of Attorney General Allred to Tom G. Oliver, Jr., County Attorney of Hays County, Texas, dated October 12, 1931 (Biennial Report of the Attorney General of the State of Texas, from September 1, 1930 to August 31, 1932, 306 (1933)) holding that the clerk was entitled to 15 cents for entering the appearance of each party to the suit where the clerk actually makes an entry of such appearances upon his docket with the dates thereof.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 28 (1945).

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Rules 87, 237

(No. 73) Question: Where the time within which a defendant must answer falls in vacation, and the defendant accordingly files a plea of privilege in vacation, does Rule 87 give the plaintiff ten days after appearance day within which to file a controverting plea, or does the plaintiff merely have ten days after the day on which the defendant was required to plea?

Answer: It is the opinion of the subcommittee that under the express terms of Rule 87 the plaintiff has ten days after "appearance day" within which he may file a controverting plea. Appearance day is the first day of' the next term when the day upon which the citation directs the defendant to answer falls in vacation (Rule 237).

Under the statute, before the adoption of the Rules, it was held that even though the defendant filed his plea of privilege before appearance day, the plaintiff still had the stipulated time after appearance day within which to file a controverting plea, and the same is true under the rules.

We feel that in Rule 87 the statutory provision giving the plaintiff a stipulated period after appearance day within which he can file a controverting plea was intentionally retained.

If the citation requires the defendant to answer upon a day that falls in term time, then that day is appearance day (Rule 237), and Rule 87 allows ten days thereafter for the filing of a controverting plea. If, on the other hand, the citation requires the defendant to answer upon a day in vacation, then appearance day is the first day of the next term, and the plaintiff accordingly has ten days from the first day of the term within which to file a controverting plea.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (1945).

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Rules 195, 201, 203

(No. 74) Question: Where a commission has been duly issued by the clerk of the court to a notary public for taking of an oral deposition, is the subpoena to obtain the presence of the witness to be issued by the notary public, to whom the commission has been issued, or else to be issued by the clerk of the court who issued the commission (to wit, the clerk of the court in which the suit is pending)?

Answer: We think the commission should be issued by the notary public in accordance with Article 3757 of the Revised Statutes, which was not repealed by the adoption of the rules. This article provides in substance that the officer (meaning the officer to whom the commission for taking of the oral deposition is addressed, which is defined in Rule 203, and which is old Article 3756, unchanged) "shall have the same power and authority to enforce the attendance of the witness and to compel him to testify, as in cases of written interrogatories.” Under Rule 195 (which is old Article 3747, unchanged) the officer holding a commission for the taking of a deposition on written interrogatories has the authority "to issue a subpoena to the sheriff or any constable of the county requiring him to summon the witness to appear and answer interrogatories at the time and place named in the subpoena." The first part of Rule 201 reading:

"Any person may be compelled to appear and depose in the same manner as witnesses may be compelled to appear and testify in court… "

is cumulative of Article 3757 and does not relate particularly to the method of compelling the attendance of the witness, but rather defines the scope of the power of the officer over the witness as being that generally possessed by the court.

The question does not involve contempt proceeding for non-appearance and of course the opinion does not apply to that subject.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (1945).

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Rules 107, 119

(No. 76) Question: Do the provisions of Rule 107 that "No default judgment shall be granted in any cause until the citation, with the officer's return thereon, shall have been on file with the clerk of the court ten days," require that a waiver of citation as provided for in Rule 119 shall have been on file ten days before default judgment may be taken?

Answer: Waiver of citation under Rule 119 evidently contemplates that no citation is issued and consequently that the sheriff makes no return. It involves the signing of a paper under oath and the filing of the, paper in the cause. Consequently, in our opinion, Rule 107, pertaining to the time for which an officer's return shall lie on file before default judgment, is inapplicable to a case of this sort. However, we beg to call to your attention such cases as Pearce v. Tally, 8 Tex. 304 (1852), and Guerra v. Guerra, 213 S.W. 360 (Tex. Civ. App.-San Antonio 1919), which hold that the regular time between service of citation and default shall intervene in the case of a waiver under Article 2045, which Rule 119 in substantially the same wording supersedes.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (1945).

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Rules 1, 106, 107

(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).

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Rules 107, 114, 115, 116, 117, 244

(No. 82) Question: Rule 107 provides, in part: "No default judgment shall be granted in any cause until the citation, with the officer's return thereon, shall have been on file with the clerk of the court ten days, exclusive of the filing and the day of judgment." Is this requirement applicable to a citation by publication? Can the court appoint an attorney to represent the defendant before appearance day?

Answer: We are of the opinion that the questions should be answered in the negative. The requisites of a citation by publication are prescribed by Rule 114, the form thereof in actions involving land by Rule 115, the service thereof by Rule 116 and the return by Rule 117. These rules specifically prescribe the procedure with respect to citations by publication and Rule 107 dealing with citations in general is not applicable.

There can be no default judgment when the citation is made by publication. Under Rule 244 "if no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant and judgment shall be rendered as in other cases."

We are of the opinion also that no attorney can be appointed until appearance day which is fixed by Rule 114 (and is required to he set forth in the citation) "at or before 10 o'clock a.m . of the first Monday after the expiration of 42 days from the date of issuance thereof, specifying the day of the week, the day of the month, and the time of day the defendant is required to answer."

The sheriff should make his return promptly after the last publication but the court should make certain that the citation has been published once each week for four (4) consecutive weeks "the first publication to be at least twenty-eight (28) days before the return day of the citation" before appointing an attorney to represent the defendant who has not otherwise made an appearance on the days he is required to appear.

6 Tex. B.J. 20 (1943) reprinted in 8 Tex. B.J. 31 (1945).

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Rules 749, 752

(No. 83) Question: In regard to Rules 749 and 752 relating to Forcible Entry and Detainer:

1. Do the rules require the plaintiff or landlord to give an appeal bond in order to appeal to the County Court?

2. Where the tenant is the appellee in the County Court, does Rule, 752 contemplate that such appellee could, under any circumstances, recover damages or expenses incurred in defending the appeal?

Answer: In our opinion both of said questions should be answered in the affirmative.

We call attention to the fact that these two rules are exact copies of the former Statutes, and therefore these rules effect no change in the former practice under the Statutes.

It had been held under the Statutes that the giving of the prescribed bond was a prerequisite to an appeal to the County Court by either party. In regard to the recovery of damages or expenses by a tenant who is appellee in the County Court under Rule 752 (formerly Article 3990), reference is made to Tallwater v. Brodnax, 137 Tex. 604, 156 S.W.2d 142 (1941); and Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332 (1938), decided by the Commission of Appeals.

6 Tex. B.J. 49 (1943) reprinted in 8 Tex. B.J. 31 (1945).

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Rule 751

(No. 84) Question: Does Rule 751 respecting forcible entry and detainer allow the case to be heard on appeal before the regular term time of the court; and what is the meaning of the words, in that Rule, "shall be entitled to precedence in the county court?"

Answer: The first part of the question seems to be answered by the answer to question No. 21 in 5 Tex. B.J. 168. In our opinion the meaning of the wording, above quoted, concerning precedence, is that among the cases to be disposed of on the docket of the county court, this sort of a case will have especial preference over other sorts in connection with the order of disposition. It is the desire of Rule 751 to accelerate the proceedings as much as possible. You will notice, in that respect, that under Article 3989 the justice could make his filing in the county court "on or before the first day of the first term of said court, or, if there be insufficient time, on or before the first day of the next succeeding term thereof." The quoted words have been dropped from Rule 751, thus imposing upon the justice the duty of promptness.

6 Tex. B.J. 76 (1943) reprinted in 8 Tex. B.J. 32 (1945).

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Rule 101

(No. 85) Question: Under Rule 101 within what time is it necessary, after suit has been filed, to have citation issued in order that the filing of the suit may stop the running of limitation?

Answer: Rule 101 did not change the established rule of decision that in order to toll the statute of limitation there must not only be a bona fide intention to have process issued but due diligence must be exercised to see that it is done. The rule with respect to statutes of limitation which require the action to be "commenced and prosecuted" within a designated time after the accrual of the cause of action is thus stated in Allen v. Masterson, 49 S.W.2d 855 (Tex. Civ. App.-Galveston 1932, writ ref'd):

"When a petition is filed, it is the duty of the clerk to issue citation immediately, and the plaintiff has the right to presume that the clerk will issue within a reasonable time. If, however, the clerk fails to do his duty, it is incumbent upon the plaintiff to see that it is done."

See also San Saba Nat'l Bank v. Parker, 135 Tex. 136, 140 S.W.2d 1094 (1940).

6 Tex. B.J. 76 (1943) reprinted in 8 Tex. B.J. 32 (1945).

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MISCELLANEOUS QUESTION

(No. 86a) Question: What is the contrast between the doctrine o f presumed harm and that of prejudicial error under former Rule 62a?

Answer: Under the doctrine of presumed harm an error on the part of the trial court frequently resulted in reversal without and sometimes irrespective of considerations outside of the error itself; under the doctrine of Rule 62a, as worded, an error did not result in reversal unless in the opinion of the appellate court it involved "such a denial of the rights" of the appealing party "as was reasonably calculated to cause and probably did cause an improper judgment"; it was intended that there would be no presumption of harm but that harm would have to be shown or appear to the court before a reversal would result. Recognizing this distinction, the Supreme Court in Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822 (1923), nevertheless felt unwilling to apply Rule 62a to an error, there involved, which in its opinion constituted a breach of certain statutes, upon the ground that the statutes were paramount. Following that decision, Rule 62a became largely ineffective.

6 Tex. B.J. 76 (1943) reprinted in 8 Tex. B.J. 32 (1945).

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Rules 434, 503

(No. 86b) Question: As Rules 434 and 503 are worded like former Rule 62a, should they, with respect to prejudicial error, receive the interpretation that such former Rule received where the pertinent statutes, such as were held to be paramount in the case above cited, have themselves been repealed and turned into rules?

Answer: In our opinion the answer should be in the negative. The Supreme Court in Texas Employers' Ins. Ass'n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942) construed the part of these Rules that regulates appellate severance in the manner in which the corresponding part of Rule 62a had been construed because the wording of Rule 62a had been repeated, in such respect, in these new Rules; but the Court added the following qualification concerning the part of such new Rules which in the light of Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822 (1923), manifestly relates to prejudicial error:

"In regard to our holding, supra, that the repromulgation in the same language of a former rule of civil procedure carries with it the interpretation placed by this Court on the former rules, we wish to say that such holding assumes that no other rule of this Court has been promulgated which would change or modify the meaning of the former rule. Furthermore, our holding in this regard assumes that the interpretation placed on the former rule was not influenced by any then-existing, but not repealed, procedural statute."

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 32 (1945).

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Rules 295, 483

(No. 86c) Question: In Consolidated Underwriters v. Ruff, 164 S.W.2d 550 (Tex. Civ. App.-Beaumont 1942), the Court of Civil Appeals held that the action of the trial court in orally calling attention to a conflict in the jury's findings instead of reducing that instruction to writing, in accordance with Rule 295, committed reversible error upon the ground, as expressed in its opinion, that "In giving additional charges to the jury this rule must be complied with, since it has the force and effect of a statute.... Where the statute regulating the giving of the charges to the jury is violated, error must be presumed." The Supreme Court refused application for writ of error in the case for want of merit, thus declining, under Rule 483, to approve the opinion. Does the violation of such a requirement as is found in Rule 295 present a case of presumed harm?

Answer: In our opinion the answer should be in the negative. As to presumed harm, see the above questions and answers and No. 35 in 5 Tex. B.J. 170. As to the pertinent distinction between rules and statutes see No.6, 5 Tex. B.J. 168 and Texas Employers' Ins. Ass'n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942). Although the Subcommittee, considers that the result should be the same if a statute had been involved, that question is not presented here because in this instance the requirement of writing is found entirely in a rule of court.

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).

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Rules 67, 274, 277, 279

(No. 88) Question: Rule 67 reads "When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings ... provided that written pleadings, before the time of submission, shall be necessary to the submission of special issues, as is provided in Rules 277 and 279." Does this rule mean that it is necessarily reversible error to submit special issues when they have not been raised by the written pleadings as provided in the above rule and in Rules 277 and 279?

Answer: No. Rule 274 was amended at a later date than the date upon which the above requirements were promulgated. This later amendment reads "Any complaint as to an instruction, issue, definition or explanatory instruction on account of any defect, omission, or fault, in pleading, shall be deemed waived unless specifically included in the objections." This amendment is contained, it will be recalled, within a rule, which, regulates objections to the charge of the court. So that the opinion of the subcommittee is that issues, submitted, without written pleadings to support them will not be erroneous upon that ground unless objection upon, that ground is made.

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).

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Rules 45, 69

(No. 89) Question: Where legal conclusions are used in a pleading, what do the rules contemplate as the proper treatment of them?

Answer: By Rules 45 and 69 the court omits, the requirement that allegations be of "facts" that had been contained in the parent statutes. In the first of these rules the court adds "that an allegation be … of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole."

In our opinion, therefore, allegations of conclusions of law should be treated as good pleading unless fair notice is not given by them and should even then be considered as sufficient unless objection on that ground is made to them. See Rules 67, 90 and 274.

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).

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Rule 301

(No. 90) Question: Is Rule 301 properly cited as authority in the opinion in the case of Starr v. Ferguson, 140 Tex. 80, 82, 166 S.W.2d 130, 131 (1942)?

Answer: No. Because the case was tried before the new rules became effective. The Supreme Court has stricken from the opinion the reference to Rule 301.

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).

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Rules 437, 504

(No. 91) Question: Do the rules which authorize an abbreviation of the record on appeal allow the omission from the transcript of documents showing the jurisdiction of the trial or appellate court? Does Opinion No. 42 of the subcommittee militate against such procedure?

Answer: Opinion No. 42 was only intended to relate to that presumption which had been indulged in by appellate courts to the effect that where the statement of facts was incomplete it would be presumed that the omitted matter was sufficient to sustain the judgment of the trial court. Our Opinion No. 42 related to matters omitted from the statement of facts, and it did not relate to the transcript, nor did it undertake to suggest a rule showing what papers should be contained in the transcript to establish the jurisdiction of the trial or appellate court.

We call attention to Opinion No. 69, 5 Tex. B.J. 428, which construes Opinion No. 42 and states that it was not the intention of Opinion No. 42 to say that all presumptions in favor of the judgment of a lower court are to be done away with, the intention merely being to say that there will be no presumption that matter which is omitted from the statement of facts sustained the judgment of the trial court.

The rules provide that when matter is omitted from the transcript the parties shall be given an opportunity to complete the transcript and bring up any omitted document should such document be deemed material. In other words, if the appellate court feels that the petition and bond from the justice's court or any other document should appear in the record in order to give the Court of Civil Appeals jurisdiction, then the rules provide that the parties should be given an opportunity to bring up the omitted documents, and the appeal should not be dismissed without first affording this opportunity. Rules 437, 504.

6 Tex. B.J. 500 (1943) reprinted in 8 Tex. B.J. 36 (1945).

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Rules 142, 523

(No. 92) Question: Does Rule 142 prohibit an attorney from acting as surety in a case pending in the justice court?

Answer: We consider that the answer to this question should be in the affirmative, if the case supposed is one where the court has not given leave that the attorney act as surety. Rule 142 permits the clerk of the district or county court to require security for costs and adds that "No attorney or other officer of the court shall be surety in any cause pending in the court, except under special leave of the court." That this rule in its entirety is applicable as well to the justice court would seem clearly to follow from Rule 523 which reads that "All rules governing the district and county courts shall also govern the justice courts, insofar as they can be applied, except where otherwise specifically provided by law or these rules." Of course, the requiring of security for costs and the prohibition against attorneys as sureties can be as well applied in the justice court as in the district or county court, and, so far as we can ascertain, there is no contrary specific provision of the law or the rules. As you will see, Rule 523 is in broader language than R. S. Articles 2381 and 2410, which the rule replaces. These former articles applied to justice courts and made the law respecting security for costs, procedure, and other subjects specifically specified in the article applicable in the justice courts if prescribed for the district and county courts. The intention to embrace the matter respecting security for costs seems to be emphasized by this history of Rule 523 and its broad words, "All rules governing the district and county courts." We consider, however, that, as was held under old Rule 50 which Rule 142 embraces with like wording, if an attorney acts as surety without leave of court, while the attorney is in the wrong, that fact does not avoid his liability upon the bond or the validity of the bond itself. Kohn v. Washer & August, 69 Tex. 67, 6 S.W. 551 (1887).

6 Tex. B.J. 107 (1943) reprinted in 8 Tex. B.J. 34 (1945).

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Rules 324, 325, 374, 418

(No. 94) Question: What are the requisites of the "points" in appellant's brief?

Answer: Quotations from Rule 418 and one of its appended notes, from an opinion of the Supreme Court clearly state and explain the requisites.

The pertinent part of Subdivision (b) of Rule 418 reads: "Such points will be sufficient if they direct the attention of the court to the error relied upon and they should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief. Assignments of error need' not be copied in the brief, and may be cited by reference only.”

Assignments of error are thus only referred to in the brief. They are not to be confused with "points" which are to be set out in the brief. Upon the subject of assignments of error see Rule 374 and compare Rules 324 and 325.

A note appended to Rule 418 reads: "The ‘points’ provided for are not to be formal propositions, but brief expressions of the questions involved in the appeal. For example, ‘First Point: The error of the court in refusing to charge upon the issue of appellant's liability under the family purpose doctrine. Germane to Assignment of Error No. 4, Transcript p. 38.’”

In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), the Supreme Court, in disagreeing with expressions in the opinion of the Court of Civil Appeals upon this subject, said: "Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. The object of a 'point' in the brief, as provided for in Rule 418, is to call the Court's attention to the questions raised and discussed in the brief. It is intended that the 'point' shall be short or in few words. It is not necessary that a 'point' be complete within itself, in the sense that it must, on its face, show that the matter complained of presents reversible error. If a 'point' is sufficient to direct the Court's attention to the matter complained of, the Court will look to the 'point' and the statement and argument thereunder to determine question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the 'point' in 'the light of the statement and argument thereunder."

See also to the same effect Federal Underwriters Exch. v. Lynch, 140 Tex. 516, 168 S.W.2d 653 (1943).

6 Tex. B.J. 142 (1943) reprinted in 8 Tex. B.J. 34 (1945).

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Rules 109, 523, 535, 591

(No. 95) Question: First - Do the New Rules authorize citation by publication in suits filed in justice courts? Second - Does non-resident notice constitute good process out of the justice court? Third - Do the New Rules authorize the issuant of writ of attachment out of justice courts?

Answer: The rules do authorize citation by publication in suits pending in a justice court. Rule 535 expressly provides for the service of citation by publication in justice court suits and specifies the time that the defendant shall file an answer when the citation is served by publication. Rule 523 provides that all rules governing district and county courts shall also govern the justice courts in so far as they can be applied, except where otherwise specifically provided by law or the rules. Under this provision Rule 109 authorizing citation by publication in district and county courts is also applicable to justice courts.

In response to question No. 2 as to whether non-resident notice is good process out of the justice court, it is our opinion that such notice has the same validity under the new rules as it did under the statutes.

In regard to question No. 3 as to writ of attachment issuing out of the justice court, it is our opinion that such writs are expressly authorized by Articles 275, 281 (not repealed) and282 (the unrepealed part). The form and procedure concerning such writs is outlined by Rules 592 to 609 in the section of the rules relating to attachment.

6 Tex. B.J. 164 (1943) reprinted in 8 Tex. B. J. 35 (1945).

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Rules 695, 817

(No. 96) Question : How is notice given and served of the application for the appointment of a receiver under Rule 695 when the residence of the defendant is unknown?

Answer: We are of the opinion that the trial court can provide for notice in such a case. Rule 817, Ashford v. Goodwin, 103 Tex. 491, 131 S.W. 535 (1910), 20 Tex. L. Rev. 632, 5 Tex. B.J. 171 (No. 36), 15 C.J. 901, 21 C.J.S. 261.

The above conclusion, in our opinion, follows from the circumstance that the rule does not undertake to regulate the notice, and yet requires it, and that the court has both inherent power and power under Rule 817to provide a procedure. The procedure must be reasonable. The test of reasonableness would seem to lie in considerations of what under the circumstances would most likely bring notice home to the defendant. Service upon an agent or servant in charge of the property or upon a. member of defendant's family at his last Texas abode would seem to be preferable. If these are not possible, posting at the place and as in the posting statutes, or even publication, suggest themselves. See McDonald v. Mabee, 243 U.S. 90 (1917) upon the question of sufficient notice. In view of this case, we are of the opinion that if the defendant has an abode in the state, or had an abode at the time he left the state, a preferred service would be by the leaving of process at such place.

6 Tex. B.J. 193 (1943) reprinted in 8 Tex. B.J. 35 (1945).

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Rules 737, 816

(No. 97) Question: Do justice courts have jurisdiction of bills of discovery under Rule 737?

Answer: The inquiry raises a question of constitutional jurisdiction of justice courts which is not within the province of the subcommittee to consider, since its duties are confined to the interpretation of the rules of practice and procedure in civil actions. We may call attention to the fact, however, that the jurisdiction of the courts and the substantive rights of litigants were not affected by the adoption of the rules. Rule 816, and Section 2 of the Enabling Act, House Bill 108, Forty-sixth Legislature.

6 Tex. B.J. 276 (1943) reprinted in 8 Tex. B.J. 35 (1945).

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Rules 87, 384, 385

(No. 98) Question: In regard to Rule 87 concerning the notice to be given after the filing of a controverting plea: (1) Did the rule appeal the former statute, Article 2008; (2) Does the rule require service of notice upon each defendant in the case; (3) Is notice required only as to the defendant filing the plea of privilege?

Answer: In our opinion the first question should be answered in the affirmative, that is that Article 2008 has been repealed except for the portion of the article providing that "Either party may appeal from the judgment sustaining or overruling the plea of privilege." Said quoted part of the statute was considered jurisdictional and it was not repealed when the new rules were enacted, and said unrepealed portion is set out for context only following Rule 384. The remaining portion of Article 2008 was repealed and supplanted by Rule 87, and also partly by Rule 385. See list of repealed statutes enumerated in the Supreme Court order and published at the close of the rules in the Bar Journal.

In response to the second and third questions, it is the opinion of the sub-committee under Rule 87 that formal notice by mailing by registered mail of a copy of the controverting plea together with the judge's notation thereon is only required to be given to the defendant or defendants filing the plea of privilege. This conclusion is reached because the provisions of the former statute which required service "on each defendant" were changed by the rule so as to require the mailing of the notice to "the defendant ... at the post office address stated in such plea of privilege."

Although we feel that the formal notice required in the rule need only be given to the defendant filing the plea of privilege, nevertheless it is obvious that the other defendants in the case can be affected by the disposition of the plea of privilege, and therefore we feel that they should be advised of the date upon which the hearing will be had so that they may be present if they so desire at the time of the hearing. This is not because of any express provision in the rule, but merely because every party to a suit should be advised of the time that the court is going to hear a motion or take up any other matter in the case that might affect his interests.

While the subject is not directly within the questions, we feel that we should call attention to the fact that by amendment effective December 31, next, the method of service has been extended to include a mere delivery to the defendant or his attorney of the controverting plea with the notation thereon of date of hearing. In other words, service may be had by manual delivery of the controverting plea as well as by registered mail.

6 Tex. B.J. 276 (1943) reprinted in 8 Tex. B.J. 35 (1945).

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Rule 94

(No. 99) Question: The second sentence of Rule 94 reads: "Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists." As I interpret this, there can no longer be a question but that the plaintiff will not have to negative the exceptions to liability in his pleading. However, the last clause says "provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists." Does this mean that the plaintiff, while he no longer has to negative the exceptions to liability in his pleadings, and the insurer must allege the loss was due to a risk coming within a particular exception, still have to prove, that the loss is not within a particular exception to liability?

Answer: It is the opinion of this subcommittee that the rule relates only to the pleading necessary to raise certain issues in a case and does not change the burden of proof as to these issues if and when they are raised by proper pleading.

Rule 94 supersedes the line of decisions holding that the plaintiff suing on an insurance policy is required to negative in his pleading the existence of any exceptions to general liability contained in the policy. Under Rule 94 the defendant must now plead the presence of such exceptions if the defendant wishes to rely upon such exceptions as issues in the case to defeat liability. If the defendant fails to place such issues in the case by proper pleading, they are entirely out of the case, and the plaintiff need present no evidence upon such matters in order to recover on the policy. If, however, the defendant does specifically plead such exceptions and thus raise them as issues in the case, the plaintiff has the same burden of proof upon such properly raised issues as he had prior to the adoption of Rule 94.

6 Tex. B.J. 308 (1943) reprinted in 8 Tex. B.J. 36 (1945).

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Rule 184a

(No. 100) Question: Is Rule 184a, which becomes effective at the beginning of 1944 and has regard to judicial notice of foreign law, a rule of evidence so that the foreign law must be pleaded or else be presumed to be the same as the law of Texas, or is it a rule of law to the extent that such presumption is eliminated?

Answer: Pleading of the law of the foreign states and other jurisdictions referred to in Rule 184a is not necessary. If the trial court takes judicial notice in such a case, the parties must be either movants therefor or put on notice beforehand as required in the rule. If they so move or are put on notice, the trial judge may consider the matter and come to a conclusion upon it. In the absence of the indicated procedure the ordinary rule heretofore obtaining in Texas will apply; that is, that the law of Texas will govern. In the absence of the condition which sets in force the exception, the Texas common law rule will apply. See Prudential Ins. Co. v. Shumaker, 178 Md. 189, 12 A.2d 618 (1940); McCormick and Ray on Evidence, Sec. 58; and Rule 184.

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

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Rules 571, 751, 753

(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).

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Rules 86, 93(a), 816

(No. 104) Question: Rule 86 of our civil practice provides for filing plea of privilege to be sued in the county of one's residence. What should be the contents of a plea where one is sued for land that is not situated in the county where the suit is brought, e.g. trespass to try title?

Answer: The jurisdiction of the courts and the venue of actions therein were not extended or limited by the adoption of the rules (Rule 816).

Subdivision 14 of the general venue statute (Article 1995) provides that suits for the recovery of lands or damages thereto “must be brought in the county in which the land, or a part thereof, may lie." While this requirement appears to be mandatory, it is settled that this subdivision prescribes the venue in such actions, that it does not relate to jurisdiction and may therefore be waived. South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937).

If a suit in trespass to try title is not commenced in the county where the land or some part thereof lies, the defendant who prefers to try the case in the county where the land lies rather than in the county where the suit is brought may seasonably claim the right to have the case transferred to the county where the land lies. In such event the plea of privilege, sworn to and filed in due time, should allege that it appears from plaintiff's petition, if that be the case, or that, as a matter of fact, the suit is not brought in the county where the land or some part thereof lies as required by subdivision 14 of Article 1995 and that the cause should be transferred to that county. In this sense the statute is mandatory and the cause must be transferred. Rule 93 (a); Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113 (1933); South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937). If, however, the defendant does not file a plea of privilege to be sued in the county where the land lies, answer should be filed within the time required by the rules in the county where the suit is brought and the trial should be there proceeded within due course.

The Supreme Court has held that a plea of privilege under Article 2007, which is substantially the same as Rule 86, is sufficient to cover all cases of personal privilege and all cases of mere venue as provided by the various provisions of Articles 1995 and 2390 relating to venue. Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938).

Therefore, if the defendant resides out of the county in which the suit is pending so as to authorize the affidavit of nonresidence, the plea of privilege can follow the exact form outlined by Rule 86, and it will be sufficient to cover subdivision 14 of the Venue Statute without any express allegation concerning the location of the land. But, as hereinabove stated, an alternative form is authorized under the decisions, and the plea can omit allegations as to the defendant's residence and embody in lieu thereof the allegations as to the location of the land and the nature of the suit as above set out. Either form is sufficient under the rule as construed by the decisions.

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 38 (1945).

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Rules 627, 748, 755

(No. 105) Question: Rule 627 under Executions provides that execution shall issue after the expiration of twenty days from final judgment. Rule 755 under Forcible Entry and Detainer on appeal to county courts provides that writ of restitution or execution or both shall be issued by the clerk and executed "as in other cases." Does this rule mean that when the plaintiff obtains a final judgment in a forcible entry and detainer suit in the county court, he must wait twenty days before obtaining and executing a writ of restitution?

Answer: It is the opinion of the subcommittee that the question should be answered in the negative. That portion of Rule 755 which states that writs of restitution or execution shall be issued by the clerk and executed by the sheriff or constable "as in other cases" refers to the method of issuing and executing the writ rather than to the time of the issuance of the writ. Rule 755 is an exact copy of the former Statute (Article 3993), and we find no decisions holding under the Statute that a writ of restitution could not be issued and executed until the time had arrived for the issuance of a writ of execution.

Rule 627 providing that the clerk shall issue execution after the expiration of 20 days from the rendition of final judgment fixes the time for the issuance of executions, but it does not relate to writs of restitution nor does it fix the time within which writs of restitution can be issued or executed.

Rule 748 expressly provides that "No writ of restitution shall issue until the expiration of two days from the rendition of judgment;" and it is the opinion of the subcommittee that under this Rule writs of restitution can issue at any time after the expiration of two days from the rendition of judgment, and that such writs can then be executed immediately by the officer. Although Rule 748 might be construed as being applicable only to the procedure in the Justice Court, nevertheless the portion of said rule just quoted is not necessarily so limited in its application. Inasmuch as this is the only express declaration in the Rules as to how soon a writ of restitution can be issued after final judgment, we feel that it should be given effect in both the Justice and County Courts. This construction is also supported by the general policy of the Rules to bring about a speedy disposition of appeals in forcible entry and detainer suits.

6 Tex. B.J. 550 (1943) reprinted in 8 Tex. B.J. 37 (1945).

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Rule 97

(No. 106) Question: Is it permissible under the new rules for the tenant-defendant who has been overcharged in rent to file a cross-action in Forcible Entry and Detainer suit to recover the treble damages and attorneys fees to which he is entitled under the Price Control Act?

Answer: In our opinion, the question should be answered in the negative. Forcible entry and detainer is an extraordinary remedy requiring speedy disposition to be efficacious. For this reason, from the time of its introduction one of its general principles, upon the authority of statute, was that the only issue to be contested in the proceeding would be "the right to actual possession." The legislature at length engrafted exceptions allowing, on appeal, recovery of damages, etc., incurred on account of the withholding of possession, and allowing the joinder of claims for rent if within the jurisdiction of the justice court. These are the only exceptions that obtained when the rules were adopted and, together with the general principle, they have passed into rule form with no change in substantial wording other than an extension of the second of the exceptions so as to be open to a great extent to either party. No exception to cover the remedy mentioned in the question has been promulgated unless it lies in Rule 97, which allows any kind of a counterclaim against any kind of a claim, with qualifications which are not here pertinent. The liberal rules of joinder and counterclaim in district and county courts did not obtain in forcible entry and detainer cases before the adoption of the rules, but the exceptions to the general principle of one issue only, above described, were always up to that time exclusive. There is no indication that the rules intend to depart from the principle or add to the exceptions in any other way than to enlarge one of the exceptions in the manner already stated. The authorities for the views above expressed are Clark v. Snow, 24 Tex. 242 (1859); H.K. & F.B. Thurber & Co. v. Conners, 57 Tex. 96 (1882); Hengy v. Hengy, 151 S.W. 1127 (Tex. Civ. App.-San Antonio 1912); R. S. 1879, Arts. 2440-2463; R. S. 1925, Arts. 3973-3994 and Rules 738-751.

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 39 (1945).

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Rules 107, 119

(No. 107) Question: 1. Do Rules l07 and 119 construed together require that a waiver of services should be on file ten days before a default judgment can be rendered? and

2. In a divorce case where service is accepted must it likewise remain on file ten days before the court can proceed with the hearing at any time after the expiration of thirty days from the time the suit is filed?

Answer: 1. In answer to your first question, we are of opinion that waiver of citation under Rule 119 contemplates that no citation is issued and consequently that the sheriff makes no return. It involves the signing of a paper under oath and the filing of the paper in the cause. Consequently Rule 107, pertaining to the time for which an officer's return shall lie on file before default judgment, is not applicable to a case of this sort. However, we call your attention to such cases as Pearce v. Tally, 8 Tex. 304 (1852), and Guerra v. Guerra, 213 S.W. 360 (Tex. Civ. App.-San Antonio 1919), which hold that the regular time between service of citation and default shall intervene in the case of a waiver under Article 2045, which Rule 119, in substantially the same wording, supersedes. This is in accordance with an opinion heretofore expressed by us, the synopsis of which appears in 5 Tex. B.J. 465.

2. In answer to the second question: it is provided in Article 4632 that a suit for divorce shall not be heard or divorce granted before the expiration of thirty days after the same is filed. It follows that whether citation is regularly served on the defendant or he accepts service in a divorce case, it cannot be heard before the expiration of thirty days after suit is filed by force of the statute. We think, however, where the defendant accepts service, Rule 107 pertaining to the time for which an officer's return shall lie on file before default judgment is inapplicable; and therefore insofar as Rule 107 is concerned the case may be heard after the expiration of thirty days after the suit is filed whether such acceptance of service has been on file ten days as required by Rule 107 or not. As in the previous paragraph, we should, in this connection, call attention to the decisions there cited upon a related though not identical subject.

It should be borne in mind, however, that in a divorce case the defendant has the right to appear and contest the divorce even if he has not answered since the statute provides that the petition for divorce shall not be taken as confessed and that "the decree of the court shall be rendered upon full and satisfactory evidence upon the judgment of the court affirming the material facts alleged in the petition," Article 4632; Bostwick v. Bostwick, 73 Tex. 182, 11 S.W. 178 (1889); Guerra v. Guerra, 213 S.W. 360, 362 (Tex. Civ. App.-San Antonio 1919).

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 39 (1945).

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Rules 1, 751

(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).

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Rules 414, 437

(No. 109) Question: Under amended Rule 414, effective December 31, 1943, if a cause is pending on appeal when the rule takes effect must appellant's brief be filed in thirty days after the record is filed OR is there an enlargement of time for filing such brief?

Answer: We are of the opinion that there is an enlargement of time. As now worded, Rule 414 requires the brief to be filed within thirty days after notice of the date of submission in the Court of Civil Appeals. The amendment, on the other hand, requires it to be filed within thirty days after the date upon which the record is filed in the Court of Civil Appeals. Copies are to be filed in either instance. It should be added that the purpose of the amendment is to prevent delay and any retarding of the supply of business upon which the Courts of Civil Appeals may work. A number of situations could present themselves in an appealed case at the end of the year of 1943 when the amendment becomes effective. If as of that time notice of date of submission has not been given under the old rule and the record has not been filed there is, of course, no difficulty: the time for the brief runs from the date upon which the record shall be filed. If such notice has been given and the record had been filed, under the formula given in Odum v. Garner, 86 Tex. 374, 25 S.W. 18 (1894), whatever proportion of the old period has elapsed at the effective date of amendment is to be deducted from the new period and the rest of the new period is still open. Thus, for example, if two-thirds of the old period has elapsed, one-third of the new period, or, in this case, ten days is still open. If such notice of date of submission has not been given but the record has been filed, by the same principle (since under the old law the full thirty days are still open) full thirty days from the effective date of the amendment are available. If the record has not as yet been filed, under the express words of the amendment full thirty days will lie after the record shall be filed.

In his letter correspondent suggests that aside from any consideration of time as a matter of right, the appellate court may grant time in the exercise of discretion. In this connection we call attention to Rule 437 as amended in 1941, and express the opinion that in determining a "reasonable time" thereunder important factors would be the consideration of actual prejudice to opponent and of the convenience and business load of the court. San Antonio & Aransas Pass Ry. Co. v. Holden, 93 Tex. 211, 54 S. W. 751 (1900), and Rule 414 as amended.

7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 40 (1945).

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Rules 324, 374

(No. 112) Question: In a jury-tried case in the county court if a material special issue is not answered by the jury, and judgment is rendered for one of the parties, should there be a reversal as in Headstream v. Mangum, 174 S.W.2d 496 (Tex. Civ. App.-Amarillo 1943), by reason of the fact that the failure of the jury to answer such special issue is fundamental error?

Answer: We are of the opinion that the question should be answered in the negative because Rule 324 requires complaints of this sort to be made grounds of the motion for new trial. As we construe the opinion, this procedure was omitted in the trial court in the cited case. If it should be that a ground or grounds of the motion for new trial presented this complaint, there would be no need to resort to fundamental error in order to supply the contention in the appellate court, since under Rule 374 the grounds of the motion for new trial in a case like this constitute the assignments of error.

We do not undertake to answer questions in pending cases, but are informed that the above case has been completed.

7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 41 (1945).

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Rules 353, 418, 420

(No. 113) Question: Can a non-appealing appellee now cross-assign error in the Court of Civil Appeals, and if so, must his cross-assignments be confined to the matters presented by appellant's appeal?

Answer: Laying aside consideration of complaints by one appellee against another appellee and the need, vel non, of motion for new trial where appellee desires to complain of the whole or a part of trial court's judgment or order, we are of the opinion that appellee in the Court of Civil Appeals may, without cross-appeal or cross-assignment of error, urge against appellant any complaints concerning the matter as to which the appellant has perfected his appeal, by the use of "points" in his brief. Cross-appeal was mentioned in original Rule 420 but the amendment to the rule omits mention of it. It is not necessary in Texas as to any complaints concerning the matter brought up by appellant; and that ordinarily means all complaints that appellee has. See Ward v. Scarborough, 236 S.W. 441 (Tex. Comm'n App. 1922) and Woldert Grocery Co. v. Booneville Elevator Co., 99 Tex. 581, 91 S.W. 1082 (1906). In some cases, however, appellant may sever, that is, take up a part only of the matter as it stood in the trial court. Woeltz v. Woeltz, 93 Tex. 548, 57 S.W. 35 (1900); Weems. v. Watson, 91 Tex. 35, 40 S.W. 722 (1897); Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960 (1937). See Rule 353.

In such cases, under the same authorities, appellee may not complain of anything within the scope solely of the part not brought up. In the brief the appellee's complaint may be called a “point” (Rules 418, 420) or, doubtless, a "cross-point," and of course must be accompanied by briefing as required by the rules above cited.

7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 41 (1945).

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Rules 66, 68, 90, 374, 418, 431, 434, 437, 503

(No. 114) Question: Does the opinion of the Supreme Court in Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943), adversely affect the abolition of the general demurrer and the provisions for ready amendment of defects of appellate procedure under the Rules of Civil Procedure?

Answer: We think that it does not. In the case referred to, plaintiff's petition in the trial court averred an untenable basis of recovery, defendant's general demurrer was sustained, plaintiff refused to amend, and the suit was consequently dismissed. On appeal the Court of. Civil Appeals reversed, because in its opinion the petition stated a cause of action. The Supreme Court held that the sustaining of a general demurrer was error, under Rule 90, but that it could not reverse the judgment of the district court for such error "because the appellant presented this case to the Court of Civil Appeals on assignments that confined that court to law questions which test the sufficiency of the petition in the district court as against a general demurrer" and because the petition showed that there was no cause of action; and it accordingly reversed judgment of the Court of Civil Appeals and affirmed that of the district court. Motion for rehearing was overruled.

Rule 90 requires that general demurrers shall not be used but that in contested litigation all faults of pleading are waived unless specifically pointed out. A want of cause of action or the failure to state one may be raised but if so, it must be raised specifically in order that the court and also the pleader may proceed with notice of the fault and that amendment may be effected. Rules 90 and 66.

If a general demurrer is urged, the court at the instance of the opposite party or on its own motion should not sustain it but should strike or overrule it or require it to be reworded. Rules 68, 90. By sustaining the general demurrer the trial court therefore commits error. The question then arises whether the error is reversible.

The court in the present decision answers in the negative, apparently because the appellant did not, on appeal, assign error or, complain as to the improper act of the trial court in considering and sustaining a general demurrer. But the opinion impliedly shows that the court was still more persuaded by the conviction that the case was considered in the manner in which the parties desired and that a correct result was reached.

In the state of the record it would seem that by a general demurrer defendant obtained all of the advantage that he would have got from a special one; his demurrer was sustained; and it would seem that the plaintiff waived any objection to the generality of the demurrer by failing to point out that a general demurrer should not be used and by standing on his petition when the general demurrer was sustained. Rule 90.

The defect in appellate procedure above referred to lay in appellant's failure to assign as error the action of the trial court in considering a general demurrer when a special demurrer should have been used. In most judge-tried cases, including any case tried solely on demurrer, the assignment of error is the "point" in the brief. Rules 374, 418. If there was no such point or no sufficient point in the present case and the appellant had asked leave in the Court of Civil Appeals to supply one, or if the appellate disposition had been based upon his omission or fault in briefing, leave to amend in that respect should have been granted before final disposition in such court. Rules 431, 437. But as the Supreme Court says, " ... an examination of plaintiff's brief in the Court of Civil Appeals discloses that he plants himself squarely on the proposition that as a matter of law" the case he alleged was recoverable, when it was not. So that amendment of the brief would have done the plaintiff no more good than amendment of his petition in the first instance. That is, none.

And finally, the ruling of the trial court, for that reason, was not one that was calculated to cause an improper judgment, and for that reason there should have been no reversal on account of it. Rules 434 and 503.

The case, from a procedural standpoint, may be summarized by an illustration. Suppose plaintiff should represent to the trial court and again to the Court of Civil Appeals that his petition showed all he could allege or prove and that he desired to stake his recovery upon it, and suppose those courts should be of the opinion that no recovery could be had in a case of that character whether amendment was had or not. The duty of the courts in such a situation would seem to be no plainer than was the duty of the Supreme Court in the present instance.

The decision, we believe, enforces two underlying principles of the rules: that the trial court should reach the merits of the case before it and that the appellate court should reach the merits of the appeal.

7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 41 (1945).

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Rules 15, 101, 114

(No. 115) Question: Rule 114 relating to citation by publication provides that the citation shall contain the requisites prescribed by Rules 15 and 101, provided no copy of the plaintiff's petition shall accompany the citation and that the citation "shall be directed to the defendant or defendants by name." The rule further provides that the citation, among other things, "shall contain the names of the parties." Is it necessary that the names of the defendants be stated twice in the citation, i.e. (1) In the direction of the citation and (2) in stating the names of the parties to the suit?

Answer: We are of opinion that it is unnecessary that the names of the defendants be stated twice in the citation, assuming that all the defendants are cited by publication. All parts of the, citation must be construed together. The portion of the citation indicating the names of the defendants to whom the writ is directed, is a part of the citation. Since a citation by publication is not accompanied by a copy of the plaintiff’s petition as is required in the case of citation in general, which petition discloses the names of the parties, the requirement of Rule 114 that the names of the parties be stated is designed to appraise the defendants not only as to who the plaintiffs are but also who the co-defendants are. No good purpose can be served by requiring that the names of the defendants be stated twice in the citation.

We are, therefore, of the opinion that a citation by publication directed to the defendants by name and which elsewhere in the body of the citation sets forth the names of the plaintiffs followed by the statement, in substance, that the defendants are those persons first named in the writ and to whom it is directed, complies with the requirements of Rule 114.

If there are other defendants, who are personally served, their names, of course, should appear in stating the names of the defendants by adding after the words “to whom it is directed,” as used in the preceding paragraph, some such wording as the following: “and (naming such other defendants) who are being (or have been) personally served with citation (or in any different manner authorized by law other than by publication).”

7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 42 (1945).

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Rules 66, 67, 90, 91, 268, 274

(No. 116) Question: In Bednarz v. State, 142 Tex. 138, 176 S.W. 2d 562 (1943), the judgment of the trial court which was largely in favor of defendant was affirmed, notwithstanding that the defendant filed no answer whatever, and the judgment of the Court of Civil Appeals, State v. Bednarz, 174 S.W.2d 743 (Tex. Civ. App.-San Antonio 1943), which reached a contrary result, was accordingly reversed. Does the decision of the Supreme Court make a written answer immaterial?

Answer: No. In any case where such an omission occurs, the plaintiff, if he so desires, may o n default day or thereafter until the time o f trial, claim and have a judgment by default, or he may call upon the court by proper procedure to require an answer to be filed and in this way avail himself of the acknowledged virtues of written pleading in preventing surprise and delineating issues. Rules 90, 91, 268, 274 and see Rule 66.

But if, as in the instant case and in many cases where the fact issues are not complicated, the plaintiff takes no such step but is content to try the matter without an answer, he may do so, and in that event he has no ground to complain. See Rule 67, which sources in Federal Rule 15 (b). That this principle in Texas long antedated the Federal Rules is shown by numerous decisions cited in the opinion in this Bednarz case.

It is contrary to the policy of this subcommittee to express opinions upon pending litigation. The case at hand is not in that class, however, as motion for rehearing has been overruled.

7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 43 (1945).

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Rule 87

(No. 117) Question: Does the repeal of Article 2013 without carrying this article forward in the new rules dispense with the requirement that dilatory pleas must be determined during the term at which they are filed if the business of the court will permit; and does the plaintiff waive his right to contest a plea of privilege if he fails to have the court pass upon the plea at the term at which it is filed or have it continued without prejudice?

Answer: An opinion heretofore given by the subcommittee relates to this same matter. See 5 Tex. B.J. 53. Our views as expressed in that opinion also apply to pleas of privilege. There is now no rule or statute requiring the trial court to pass upon a plea of privilege during the term at which it is filed, and therefore it is our opinion that the decisions are no longer applicable which held that a plaintiff waives his right to have the court pass upon the plea of privilege if he does not have it heard during the first term of court or have it continued without prejudice.

We call attention, however, to the fact that Rule 87 provides that when the controverting affidavit is filed the trial judge should note thereon the date set for the hearing of the plea of privilege, and if the hearing is not held upon the specified date it is certainly better practice to have an order entered showing the reason for the postponement. Furthermore, Rule 87 enjoins upon the court the duty to “promptly hear” the plea of privilege, and we are not undertaking to express an opinion as to the effect of an unreasonable delay. We merely voice the opinion that the expiration of the term as an absolute limitation upon the time for holding the hearing no longer exists.

7 Tex. B.J. 45 (1944) reprinted in 8 Tex. B.J. 43 (1945).

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Rules 107, 244

(No. 118) Question: Rule 107 provides that no default judgment shall be granted in any cause until the citation with the officer’s return thereon shall have been on file with the clerk of the court ten days before the default judgment is taken. Does such rule apply where citation has been obtained through publication?

Answer: We are of the opinion that Rule 107 by its wording, history and purpose, and by reason of Rule 244, does not apply to citation by publication in the respect mentioned. Where citation is had by publication, there is no default judgment but the appointment of an attorney and a trial. Consequently, the prescription of ten days filing before default judgment, which is made by Rule 107, has no application to situations of citation by publication. Such prescription was made to meet an abuse that had to some extent grown up in connection with default judgments. Sometimes attorneys who sought such character of judgments caused filing of the returns to be withheld until the time of at which they asked for the judgments and thus deprived defendants or their attorneys of fair opportunity to appraise the sufficiency of the service. This difficulty, however, does not present itself in cases where default judgments are not taken.

7 Tex. B.J. 45 (1944) reprinted in 8 Tex. B.J. 43 (1945).

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Rules 428, 429, 430, 431,481, 571, 573

(No. 119) Question: In a case tried in the justice court, the losing party filed an appeal bond, approved by the justice of the peace, which was regular in manner and form and conditioned as required by law. It recited, however, that the appeal had been taken to the county court. The civil jurisdiction of the county court had been abolished and the appeal lay to the district court, to which the transcript was sent by the justice of the peace and there filed in due time. Appellee filed a motion to dismiss the appeal on the ground that the district court had no jurisdiction because it appeared from the recitals in the appeal bond that the appeal had been taken to the county court. Appellant, invoking Rule 571, moved the court to allow him five days within which to prepare and file an amended appeal bond to correct the error in the original bond. Should the appeal be dismissed or should the appellant be allowed five days within which to file an amended bond?

Answer: We are of the opinion that appellant should be allowed five days within which to file an amended bond. Under Rule 571 the appeal was perfected by filing the bond with the justice of the peace. The transcript an appeal was lodged in due time in the court which had jurisdiction of the appeal. All parties to the suit were aware of this fact. They were required by the rule to make their appearance at the next term of the court "without further notice." The appellee did in fact make his appearance in due time in the court which actually had jurisdiction of the appeal. He was, therefore, not surprised nor had he sustained any injury by reason of the defect and irregularity in the bond which was manifestly due to a clerical error and it probably resulted from the use of a printed form.

The rules of civil procedure, in their general scope, manifest the clear intent of the Supreme Court that appeals shall not be dismissed for clerical errors or for defects in mere form or substance when they can be cured by amendment, particularly where no injury results to the adverse party. Rule 481 relating to the Supreme Court provides that the application, or brief of the argument in support thereof, or reply thereto may be amended at any time when justice requires and specifically provides that the record and the appeal bond may be amended in the Supreme Court precisely as the same could be done in the Court of Civil Appeals under Rules 428, 429, 430 and 431. These rules established a new and wholesome procedure. They were adapted to prevent injustice and the denial of the substantive rights of parties which had often theretofore resulted from undue subservience to mere legal form.

We are also of the opinion that the matter is not jurisdictional. It has been held that an informal or defective bond not objected to may confer jurisdiction. Tynberg v. Cohen, 67 Tex. 220, 2 S.W. 734 (1887); Southern Pac. Co. v. Staley, 76 Tex. 418, 13 S.W. 480 (1890); Ricker v. Collins, 81 Tex. 662, 17 S.W. 378 (1891). Irregularities in a bond are waived by an appearance and amendment of pleadings and delay in making a motion to dismiss and such defects may be waived by continuance by consent. Cason v. Laney, 82 Tex. 317, 18 S.W. 667 (1891); Casan v. Westfall, 83 Tex. 26, 18 S.W. 668 (1892); Futch v. Palmer, 11 Tex.Civ.App. 191, 32 S.W. 566 (1895). There is no sound reason why, in the circumstances stated, the appellant should not be allowed time within which to file an amended bond and we think Rule 571 requires that it be done.

7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 44 (1945).

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Rule 355

(No. 121) Question: 1. Under Rule 355 providing that the clerk shall give notice to the opposing party or his attorney of the filing by the appellant of an affidavit of inability to pay the costs of appeal, and also providing that the clerk shall give notice of the setting of a contest for hearing, what character of notice is required?

2. When a contest is filed under Rule 355 can the court set and hear the contest immediately, or is it necessary to wait ten full days from the filing of the contest or from the date of notice?

Answer: 1. In regard to the first question it is the opinion of the Subcommittee that the word "notice" as used in Rule 355 does not imply citation or service by the sheriff or constable: See former Opinion No. 57 of this Subcommittee (5 Tex. B.J. 332), in regard to notice under Article 4639a. Any means by which the party or his attorney is given actual knowledge of the filing of the affidavit or of the date for the setting constitutes a sufficient compliance with the requirements of Rule 355 as to notice. In our opinion notice by word of mouth or by telephone or by a letter from the clerk or by delivery of a copy of the affidavit or the judge's order setting the case would suffice. In regard to the notice of the filing of the affidavit we recommend that some form of notice be given in writing, such as a letter from the clerk, in order to eliminate the possibility of a question being raised as to whether notice was actually given. However, we do not feel that it is necessary that the notice be in writing in order to constitute legal notice under the rule.

2. In regard to the second question it is the opinion of the Subcommittee that the hearing upon a contest may be had after reasonable notice of the setting, without waiting for a ten-day period to elapse. The rule provides that a court officer or a party to the suit may contest the affidavit within ten days after the giving of such notice "whereupon the court … shall set the contest for hearing." The ten-day period applies to the time allowed for filing a contest, but after a contest is filed the court can hear same at any time upon reasonable notice.

7 Tex. B.J. 118 (1944) reprinted in 8 Tex. B.J. 45 (1945).

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Rules 114, 116, 118

(No. 122) Question: The sheriff's return to a citation by publication, to which was attached a copy of the publication and the affidavit of the publisher as to the dates of publication, disclosed that it was published once each week for four consecutive weeks. The sheriff returned the citation to the clerk where it was filed less than twenty-eight days from the date of first publication, but within forty days of its issuance. Is the service good or is it void because the sheriff did not hold the citation in his possession for twenty-eight days after first publication excluding the day of the publication and the day it was returned to the clerk's office?

Answer: We think the service is valid. A citation by publication issued from the district or county court shall command the defendants to appear and answer at or before ten o'clock of the first Monday morning after the expiration of forty-two days from the date of issuance thereof, specifying the day of the week, the day of the month and the time of day the defendant is required to answer (Rule 114). Rule 116 provides that citation by publication shall be served by the sheriff or any constable of any county of the state by having it published once each week for four consecutive weeks, the first day of publication to be at least twenty-eight days before the return day of the citation. We are of the opinion that the phrase "the return day of the citation," as used in Rule 116, refers to the day the defendants are required by the citation to appear and answer under Rule 114 and not to the day the sheriff actually returns the process to the clerk. The intent of the rule is that the defendant shall have at least twenty-eight full days after the first publication before he is required to answer. The fact that the sheriff may have actually returned the process to the clerk before the expiration of twenty-eight days from the date of first publication is of no materiality here, since it appears that the first date of publication was more than twenty-eight full days before the day the defendant was commanded to appear and answer and that is the essential thing required by the rules.

We call attention to Rule 118 which permits "any process or proof of service to be amended" in the discretion of the court. Even if there were substance in the point raised the court ought not to hold the citation and return void but should direct that the return be amended and the clerk's file mark changed to show that it was filed after the expiration of twenty-eight days. However, nothing of the sort is required in the circumstances stated. We call attention to the rule permitting amendments to process and return merely to bring to the fore the concept of the rules that form shall not be allowed to control the substance of things unless imperatively required in the interest of justice.

7 Tex. B.J. 118 (1944) reprinted in 8 Tex. B.J. 45 (1945).

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Rules 2,101

(No. 123) Question: Should citations in suits for delinquent taxes by taxing units under Article 7845 (b) be issued and served as provided in Article 2022 of the 1925 Revised Civil Statutes, or as provided in Rule 101 of the Texas Rules of Civil Procedure?

Answer: Article 2022 of the statutes was repealed by the adoption of the Rules of Civil Procedure (see enumeration of repealed statutes) and therefore said article is no longer in effect and can not be used as a guide for the issuance of citations. Said article did not relate specifically or particularly to tax suits, and therefore it is not continued in effect by that portion of Rule 2 providing that statutes prescribing rules of procedure in tax suits are continued in effect.

However, there were statutes in effect prescribing specific procedure for the issuance and return, of citations in tax suits at the time of the adoption of the rules, and therefore said statutes are continued in effect under the above provision of Rule 2. Therefore, in regard to citation by personal service in tax suits, cumulative methods are permissible, one method being prescribed by Rule 101 of the Rules of Civil Procedure, and the other procedure being prescribed by statutes which specifically relate to tax suits.

The subcommittee has heretofore given opinions upon this matter, and we refer you to the opinion appearing in 5 Tex. B.J. 53, and Opinion No. 24 appearing in 5 Tex. B.J. 168 .

See also Opinion No. 38 in 5 Tex. B.J. 171 relating to procedure in regard to citation by publication in tax suits.

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

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Rules 1,237, 238, 239

(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).

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Rules, 114, 116, 117

(No. 126) Question: The opinion of the subcommittee appearing as No. 122 at 7 Tex. B.J. 118, expresses the view that where a citation has been published, as required by Rule 116, "once each week for four consecutive weeks," with "the first publication ... at least twenty-eight days before the return day of the citation," and where the officer's return is made after the last publication and shows the total publication required by the rule, judgment is not erroneous by reason of the mere fact that such return is filed before the expiration of the twenty-eight days. Is this opinion correct in view of O’Connor v. Towns, 1 Tex. 107 (1846); Wagner v. Urban, 170 S.W.2d 270 (Tex. Civ. App.-Amarillo 1943); and Daniel Miller Co. v. Puett, 252 S.W. 333 (Tex. Civ. App.-El Paso 1923)?

Answer: The cited cases, as we read them, involved situations in which it appeared that there had been insufficient service or in which the returns failed to show sufficient service. In the case last cited, one of the reasons why the return failed in this respect was that it was made within fourteen days after the writ was issued and therefore did and could not show the four publications. It was in this connection that the court said, as a reason for its decision, that the return was filed “before the full twenty-eight days for publication were up."

The fact situation assumed in the question at hand is different. The four consecutive publications could be shown in the return and were so shown, and the judgment ensued after the full time required by Rule 114.

As we read the rules, no requirement is made that the officer's return shall be made on or after the full twenty-eight days elapse. The requirement in this respect is only that the return show the four publications, etc. Rule 117. The return would consequently have to be made subsequently to the fourth publication, but, in our opinion, it would not have to be delayed further. As we observed in the previous opinion, when Rule 116 calls for the twenty-eight days' service before "return day," it does not refer to the day upon which the officer's return is actually made. See R. S. Arts. 2036 and 2039, similar words in all the preceding revised statutes, and 37 Words and Phrases 548.

7 Tex. B.J. 281 (1944) reprinted in 8 Tex. B.J. 47 (1945).

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Rules 695, 695a, 775, 776

(No. 127) Question: In an action to partition real property where the realty will not admit of a fair and equitable partition in kind and where the court, with the consent of both parties, appoints a receiver to sell the real property and where in the same action it is sought to partition personal property being furniture and fixtures used in the business building which is a part of the realty, is Rule 775 mandatory in requiring the "court to sell the personal property under execution and not through the receiver appointed to sell the real property, or is Rule 775 merely directory? In other words, does the district court have jurisdiction in the absence of objection by the parties at interest to direct the sale of personal property by the receiver appointed to sell the real property involved in the same litigation?

Answer: In our opinion the district court does have jurisdiction to direct the sale of the personal property by the receiver under the above circumstances.

The statutes giving the district court power to appoint receivers (Arts. 2293-2319) were not repealed by the Rules of Civil Procedure; and the rules themselves (Rules 695 and 695a) contemplate that receivers will be appointed to administer personal property as well as real estate. We feel that it is within the jurisdictional powers of the district court to order a sale of personal property through receivership.

Rule 775 does not purport to restrict the jurisdiction of the court. It provides a proper method of conducting the sale of personal property in partition proceedings, but it does not state that such method is exclusive of all others. Rule 776 expressly states that "no provision of the statutes or rules relating to partition shall ... preclude partition in any other manner authorized by the rules of equity ... " See Thomas v. Southwestern Settlement & Dev. Co., 132 Tex. 413, 123 S.W.2d 290 (1939) by Commission of Appeals. We feel that an order directing the sale to be made by the receiver would be valid and within the jurisdictional powers of the court under the circumstances stated in the question.

7 Tex. B.J. 281 (1944) reprinted in 8 Tex. B.J. 48 (1945).

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Rules 2, 330, 331, 816

(No. 128) Question: Do the provisions of Rules 330 and 331 apply to district courts having successive and continuous terms and civil jurisdiction, even though they also have criminal jurisdiction?

Answer: We think the answer should be in the affirmative.

The enabling act (H. B. 108, 46th Leg.) conferred upon the Supreme Court "full rule-making power in the practice and procedure in civil actions." Rule 2 defined the scope of the rules to embrace and govern the procedure in the justice, county, district and appellate courts of the State of Texas "in all actions of a civil nature" with certain exceptions not now material. The rules did not purport to deal with questions of either jurisdiction or venue (Rule 816). The fact that the particular court in which the civil action was pending had both civil and criminal jurisdiction could not affect or impair the application of the rules to the civil action.

At the time the rules were formulated, there was a distinct trend toward successive and continuous terms of courts, as far as was permissible under the Constitution. That trend still persists. It was hoped at the time that the legislature would provide for successive and continuous terms and it did so in many cases. The rules in their general scope were devised to meet such a development.

Article 2092, which was repealed at the time the rules were adopted, provided certain rules of practice and procedure in civil district courts in counties having two or more district courts with civil jurisdiction only. In formulating Rule 330, it is significant that the word "only,” which appeared in Article 2092, was omitted, because the manifest intention was that the rules should apply to civil actions not only in courts having civil jurisdiction only but also in courts having both civil and criminal jurisdiction.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 48 (1945).

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Rules 176, 186

(No. 129) Question: Under Rules 186 to 215 in regard to the taking of depositions, can a married woman be compelled to appear and testify by deposition? Can a married woman be required to attend as a witness and testify at the trial of a cause?

Answer: In our opinion both of the questions should be answered in the affirmative.

Rule 186 in regard to depositions of witnesses shows by its terms that it contemplates that the testimony may be taken by deposition "of any witness, male or female." Rule 176 expressly provides for the subpoenaing of "any witness or witnesses, male or female" who reside in the county to enforce their attendance in person at the trial. Both of these rules were taken without change from the Acts of the 46th Legislature (1939) page 323, and the purpose of said legislative enactment, as shown by the caption and the emergency clause, was to authorize the compulsory attendance of females to give testimony both in person and by deposition. The emergency clause of the Act states that "the fact that females may not now be compelled to appear as witnesses, even though duly summoned, creates an emergency ... "

Under said legislative act of 1939, and also under the rules which carried forward said enactment, it is our opinion that any female, whether married or unmarried, can be compelled to attend court and testify in person or can be compelled to testify by deposition in the same manner and under the same circumstances that a male witness can be compelled to testify in person or by deposition.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).

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Rules 169, 211

(No. 131) Question: Where a request is duly made under Rule 169, for the admission of the truth of different facts, and where the party of whom the request is made admits one of the facts and under oath denies another, may the latter upon the introduction in evidence of his admission introduce his own denial?

Answer: By way of explaining what we conceive to be the application of the question, we shall employ an illustration: In a collision case, request is made of plaintiff to admit that the cars came together at a street crossing and that, at the time, plaintiff was not sounding his horn. Plaintiff admits the first fact and under oath denies the second. If defendant introduces the admission, may plaintiff introduce the denial? We think not. This is not a deposition. Either party is allowed to use a deposition because Rule 211 says so. In view of this and of the evident danger that would arise in the present proceeding if a party's self-serving responses could be used by him as evidence, we believe that the rule under investigation would have been differently worded if such a result had been intended.

In expressing these views, we desire to exclude from consideration cases in which by reason of adroit wording of the request, it is necessary to consider a denial in one response in order to bring out the full or true meaning of another response. There may, of course, be other exceptions. For this reason we desire to confine our views to clear situations such as we have contemplated in the example which we have used in the previous paragraph.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).

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Rules 422, 429, 431, 437, 469, 481, 504, 814

(No. 131) Question: In San Antonio Joint Stock Bank v. Malcher, 164 S.W.2d 197, 199 (Tex. Civ. App.-San Antonio 1942), the Court of Civil Appeals held that points presented by appellant, but not briefed were waived. The decision was followed by Piedmont Fire Ins. Co. v. Ladin, 174 S.W.2d 991 (Tex. Civ. App.-Galveston 1943) and, during the present year, by Broussard v. L. Cartwright Realty Co., 179 S.W.2d 777 (Tex. Civ. App.-Amarillo 1944), and Orange Laundry Co. v. Stark, 179 S.W.2d 841 (Tex. Civ. App.-Amarillo 1944). Has appellant any remedy in a Case of this sort?

Answer: Yes. His most obvious remedy is, of course, to comply with the briefing rules when he prepares his brief.

We are of the opinion that he has another remedy; that is, a motion to amend. We beg to quote from a number of rules and cases in support of this answer.

Rule 422. The purpose of briefs being to acquaint the court with the points relied upon, the manner in which they arose, together with such argument of facts and law as will enable the court to decide the same, a substantial compliance with these rules will suffice in the interest of justice; but for a flagrant violation of the rules the court may require the case to be rebriefed.

Rule 429. Should it be apparent during the submission or afterwards that the case has not been properly prepared, as shown in the transcript, or properly presented in the brief or briefs, or that 'the law and authorities have not been properly cited, which will enable the court to decide the case, it may decline to receive the submission; or, if received, may set it aside and make such orders as may be necessary to secure a more satisfactory submission of the case; ...

Rule 431. Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe, and if the court shall strike or refuse to consider any part of a brief, the court shall on reasonable terms allow the same to be amended or supplemented.

Rule 437. 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, ... "

In Gillette Motor Transp. Co. v. Wichita Falls & S. Ry. Co., 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943), the Court decided that under the rules above quoted it could, as it did, "after submission of the cause, allow amendment of 'appellant's brief' in order to present points of error not presented in the original brief."

There are similar rules as to applications for writ of error and briefs in the Supreme Court, viz. Rules 469 subd. (f), 481, 491, and 504.

In Cochran v. Wool Growers Central Storage Co., 162 S.W.2d 941 (Tex. 1942), the Supreme Court, having previously granted a writ of error, dismissed it because the application in its Grounds of Jurisdiction on the subject of conflicts of decisions was not in accordance with the rules. Subsequently, on motion far rehearing, it observed that the application had been filed before the rules went into effect but granted a motion to amend which was filed after their effective date, saying in support of its action: "An examination of Rule 481, supra, will disclose that it provides: ‘The application, ... may be amended at any time when justice requires and upon such reasonable terms as the Court may prescribe...' Rule 504, supra, provides: 'The Supreme Court will not ... 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,...' Clearly these two rules authorize this court to grant one who prosecutes a writ of error to this court the right to amend his application, where it is defective either as to form or substance. Such being the case, an application which is defective, in that it fails to properly state grounds of jurisdiction under Section 1 of Article 1821, R.C.S., or Subdivision (b) of Rule 469, can be amended in this court at any time when, in the opinion of the court, justice so requires. Furthermore, we think the right to amend maybe granted even though the original application for writ of error was filed before the effective date of Rules 481 and 504, supra. This holding in no way violates Rule 814, supra, defining the effective date of our present Texas Rules of Civil Procedure. We will therefore order that the amended application for writ of error be filed, and will now consider this case on such amended application."

See also Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944), in which the same court refused to consider a point of error which was contained in neither the motion for rehearing nor the application. The court, however, took care to add: "It would serve no purpose in this instance to permit the application for writ of error to be amended under Rule 504 because the point was not assigned in the motion for rehearing in the Court of Civil Appeals."

These decisions, and the rules upon which they are based very clearly indicate, we think, that a proper practice on behalf of a party whose appellate contentions have not been considered an account of fault in briefing may and, when he actually has a meritorious contention, should be motion to amend.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).

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Rule 114

(No. 133) Question: Rule 114 provides that a Citation by Publication shall contain "a brief statement of the nature of the suit (which need not contain the details and particulars of the claim) ... " In view of this rule is it sufficient for the Citation by Publication in a divorce case to state that it is a "suit for divorce"; or should the Citation by Publication go further and give in general terms the grounds for divorce as alleged in the petition?

Answer: In our opinion the Citation by Publication is sufficient when it states the nature of the suit as a "suit for divorce." In arriving at this conclusion we assume that the suit is solely for divorce, and that it does not involve the custody of children or property rights, etc.

Before the adoption of the Rules, Article 2039 required Citation by Publication to "contain a brief statement of the cause of action," and Article 2041 provided that "it need not contain the details and particulars of the cause of action." These Statutes were repealed, and Rule 114 which supplants them now only requires "a brief statement of the nature of the suit (which need not contain the details and particulars of the claim)." We feel that the nature of the suit is adequately stated when it is referred to as a suit for divorce. The new Rule does not require a brief statement of the cause of action, nor does it require a brief statement of the claim. Insofar as applicable to the question at hand, it merely requires a statement of the nature of the suit.

The purpose of a Citation by Publication in a divorce action is to inform the defendant that such action is pending (Morehouse v. Morehouse, 111 S.W.2d 831 (Tex. Civ. App.-San Antonio 1937)). It is true that by reading the Citation by Publication the defendant would not ascertain the grounds upon which the divorce was sought; but the defendant would be given full notice of the filing of the suit and the fact that it was a suit for divorce, and the defendant would be given full information as to where the suit was pending so that the details and particulars of the claim could easily be ascertained. This conclusion gives effect to the change which the Rule made in the repealed Statutes.

7 Tex. B.J. 327 (1944) reprinted in 8 Tex. B.J. 51 (1945).

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Rule 187

(No. 134) Question: Under Rule 187 providing for the taking of depositions to perpetuate testimony, is the taking of such depositions limited to instances where the persons adversely interested are unknown heirs or non-residents? This question is propounded because the portion of Rule 187 which authorizes the actual taking of the depositions is embodied in the second sentence of the Rule immediately following the first semicolon therein, and a question has been raised as to whether it applies to the first sentence of the rule dealing with cases where the adversely interested parties are residents and their addresses are known.

Answer: It is the opinion of the Subcommittee that this Rule authorizes the taking of depositions to perpetuate testimony in the instances referred to in both the first and second sentences of the Rule. We feel that the obvious purpose and intention of the Rule is to allow the taking of depositions in all such cases. Any other construction would make the first sentence of the Rule entirely meaningless and inoperative.

The notation at the foot of the Rule indicates that this Rule is "Article 3742, unchanged." It was obviously the purpose of the Supreme Court to carry forward Article 3742 as a Rule, and it was well settled that said Article authorized the taking of depositions to perpetuate testimony in either of the instances under consideration. When the Rule was drafted from the Statute, the first sentence of the Statute was divided into two sentences, apparently because of the extreme length of the sentence. However, the notation was made at the foot of the Rule that it was taken from Article 3742 unchanged, and we feel that the same construction should be given to the Rule that had been given to the Statute.

7 Tex. B.J. 327 (1944) reprinted in 8 Tex. B.J. 51 (1945).

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Rules 101, 107, 108

Question: Under Rules 101, 107, and 108 of the Texas Rules of Civil Procedure, is it necessary for the validity of the citation that a copy of the citation upon which the officer makes his return and files in the court be accompanied by a copy of the plaintiff's petition?

Answer: In the opinion of the committee, the answer is "No."

The purpose of the provision that the citation should be accompanied by a copy of the plaintiff's petition is to give the defendant notice, at the time of service, of the nature of the plaintiff's demands. This purpose is accomplished when a copy of the plaintiff's petition is served on the defendant, and to require that another copy be filed in the papers of the Court with the officer's return would be useless. The original petition is already on file to be referred to if necessary and the filing of copies thereof attached to the citation would unnecessarily increase the files and would serve no purpose.

The language of Rule 101, which states that the citation "shall be accompanied by a copy of the plaintiff's petition" indicates that a copy of the plaintiff's petition is not considered as a part of the citation. Likewise in Rule 107, with reference to the return on the citation, it is provided: "it shall state when the citation was served and the manner of service and shall certify that a true copy of the citation with the accompanying copy of the petition was delivered to the defendant and was signed by him officially." This would indicate that the accompanying copy of the petition was not a part of the citation itself, otherwise it would not be necessary for the officer in his return to certify that a true copy of the petition was delivered to the defendant. Rule 107 provides that the officer executing ,the citation shall make his return thereon or attach it thereto, and there is no provision in Rule 107 providing that a copy of the plaintiff's petition should accompany the sheriff's or other officer's return thereon.

Rule 101 further provides that the party filing any pleading upon which citation is to be had shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served and this, in the opinion of the committee, requires only one copy for each of the parties to be served. The inference being that the parties defendant are each to be served with a copy of the petition but no provision is made for extra copies to be used by the officer serving the citation and attached to his return thereof.

Prior to the effective date of the Rules of Civil Procedure, Articles 2037 and 2038 of the Statutes applied in notices to serve non-residents. Article 2037 provided that the notice shall state that a copy of the plaintiff's petition accompanies the notice and that a certified copy of plaintiff's petition shall accompany the notice. Article 2038 provides that the defendant shall be delivered a true copy of the notice, together with a certified copy of the plaintiff's petition. Within the knowledge of the committee, it has always been the custom of the clerks under such Articles to attach a certified copy of the plaintiff’s petition only to the copy of the notice which was actually served on the defendant. The committee has searched the cases bearing on Articles 2037 and 2038 and has failed to find any case in which the question was raised as to whether the return of the notice to serve non-residents made by the officer and filed in court should also be accompanied by a certified copy of the plaintiff's petition.

IT IS, THEREFORE, the opinion of the committee that the copy pf the plaintiff's petition is not a part of the citation, or notice to serve non-residents, and it is not, therefore, necessary that a copy of such petition be attached to the citation upon which the sheriff makes his return and files in the court.

8 Tex. B.J. 51 (1945).

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Rules 22, 23, 24, 25, 26, 161, 162, 237

Question: What is appearance day with reference to withdrawing a case from the court's docket without the necessity of the judge's dismissing it?

Answer: Under Rule 237 appearance day applies to a defendant who has been served or who has accepted service and the rule prescribes the time and manner in which he shall answer. If no citation is ever issued on the petition and there is no acceptance of service there is no appearance day under the rules. Rules 22 to 26, inclusive, require the clerk when a suit is filed to docket the same, etc. We think a suit in which no citation has been issued or served, although not specifically mentioned in the rule, as well as one in which citation has been issued and served and no answer has been filed, may be discontinued in vacation under Rule 162 upon payment of costs, as the underlying principle is the same. It is an orderly procedure, and no one can complain of the discontinuance.

During term time, discontinuance as to a defendant who has not been served is allowable under Rule 161. We think it is desirable and the better procedure that dismissals during term time be made by the judge, if practicable. See Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 708, syllabi 8 and 9 (1944).

8 Tex. B.J. 129 (1945).

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Rule 752

Question: Rule 752 under Forcible Entry and Detainer relates to recovery of damages and expenses when such a suit is appealed to the County Court. Does this Rule, as amended on December 31, 1943, mean that whichever party finally prevails in the County Court may recover expenses and costs, including attorney's fees, regardless of the fact that he may himself have remained in possession of the premises up to the time of the trial in the County Court and the possession of the premises has not been withheld from him?

Answer: It is the opinion of the Sub-Committee that the question should be answered in the affirmative.

Prior to its amendment on December 31st, 1943, Rule 752 and the Statute from which it was taken only allowed the recovery of damages and expenses by the "appellee," and because of the peculiar wording of the Statute it was held frat the expenses in prosecuting or defending the cause in the County Court, including attorney's fees, could only be recovered by an appellee from whom the premises had been "withheld." Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332 (1938). Rule 752 was amended on December 31, 1943, and it appears to us that the amendment effects two changes, namely, it allows the appellant as well as the appellee to recover such elements of damage and expense, and it also makes it reasonably clear that either party who prevails can recover such expenses or attorney's fees regardless of whether there was a withholding of the premises from said party. The Rule now expressly states that the appellant or appellee shall be permitted to plead and prove his damages if any suffered for withholding or defending possession of the premises during the pendency of the appeal and also all necessary and reasonable expenses incurred in prosecuting or defending the cause in the County Court. The italicized words were added by the amendment of 1943, and we feel that the amendment indicates an intention to broaden the scope of the Rule in both the respects noted above, and that such construction is naturally arrived at if the changes made by the amendment are to be given effect.

In the inquiry addressed to the Sub-Committee it is suggested that if such a construction is given, to the Rule it would probably lead to the filing of substantial claims for damages and attorney's fees in practically all cases of Forcible Entry and Detainer when appealed to the County Court. Of course all such damages, expenses and attorney's fees are limited by the Rule to those arising during the pendency of the appeal. Furthermore, as to a party who has not had the premises withheld from him there could be no element of damage in that respect, and his only claim would be for reasonable expenses incurred in prosecuting or defending the cause in the County Court. The recovery of such expenses as to the appellee was allowed under the old Statute and Rule if the premises had been withheld from him, and if such relief was proper in that instance it would seem that it would also be proper in all instances allowed under the amended Rule. However, the Sub-Committee cannot undertake to pass upon the desirability or validity of the amendment.

8 Tex. B.J. 129 (1945).

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Rule 184a

Question: Does Rule 184a change the law as it existed prior to the effective date of the rules, with reference to a state court taking judicial notice of federal statutes, federal decisions, rules, regulations and proclamations, including those of federal boards and bureaus?

Answer: Prior to the effective date of the rules, the state courts could under the law take judicial notice of federal statutes and decisions but could not take judicial notice of the common law, public statutes or court decisions of other states or territories. The purpose of the rule was to make it possible for state courts to take such judicial notice of the laws of other states, and in the opinion of the committee such rule was not intended to, nor does it, change any law existing covering judicial notice of federal statutes and decisions. The words "judicial notice of the common law, public statutes and court decisions of every other state, territory or jurisdiction of the United States" used in the Rule relate to governmental units of the United States, such as a state, territory, District of Columbia and non-territorial islands of the United States. The intent to exclude from the Rule the United States, proper is further shown by the use of the words "common law," since it is settled that there is no common law of the United States. As stated, the sole purpose of the Rule was to permit the courts of this state to take judicial notice of the common law, public statutes or court decisions of other states or territories, and not to change the rule with respect to judicial notice of federal statutes and decisions.

8 Tex. B.J. 174 (1945).

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Rules 2, 114, 115, 116

Question: Where citation by publication is issued under Article 3592 in an action to declare heirship instituted under the provisions of Chapter 23, Title 54, relating to Estates of Decedents, should the citation be published in the manner and for the number of times specified in Rule of Civil Procedure 116, or should the citation be published as provided for in Articles 3310a and 3311 which regulate citations in all probate matters?

Answer: In our opinion a citation by publication in such an action to declare heirship should be published in accordance with the provisions of Articles 3310a and 3311. Rule of Civil Procedure 116 regulating service of citation by publication in ordinary civil suits has no application to probate matters.

Rule 2 expressly provides "Where any statute in effect immediately prior to September 1, 1941, prescribed a rule of procedure in lunacy, guardianship, or estates of decedents, or any other probate proceedings in the county court differing from these rules, and not included in the 'List of Repealed Statutes,' such statute shall apply." Articles 3310a, 3311 and Articles 3590-3592 were not listed as repealed, and therefore under the provisions of Rule 2 said Articles remain in full force and effect and govern the manner in which citation is served in all probate proceedings in the county court.

8 Tex. B.J. 219 (1945).

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Rule 277

Question: Rule 277, among other things provides:

"* * * * provided that, if it be deemed advisable the court may submit disjunctively in the same question two inconsistent issues where it is apparent from the evidence that one or the other of the conditions or fact inquired about necessarily exists. For example, the court may, in a workmen's compensation case, submit in one question whether the injured employee was permanently or only temporarily disabled."

It is now permissible to submit these two issues disjunctively in two separate issues, first inquiring if the disability is permanent, then preface the next issue by: "If you have answered the foregoing question 'Yes' you need not answer the following issue, but if you have answered the foregoing question 'No,' you shall answer the following issue" and then inquire if the disability is temporary?

Answer: Prior to the effective date of the rules, the conditional submission of such issues was reversible error. See Federal Underwriters Exch. v. Lynch, 140 Tex. 516, 168 S.W.2d 653 (1943) and cases therein cited.

Rule 277 provides that two inconsistent issues may be submitted disjunctively in the same question where it is apparent that one or the other of the conditions or facts inquired about necessarily exists.

Since the rule provides that such issues may be submitted disjunctively in one issue, the question is whether or not such issues may be disjunctively submitted in two issues, by a conditional submission of the second issue.

The result of such submission in one question or a conditional submission in two issues is the same, i.e. a disjunctive submission. Since Rule No. 1 provides that the rules should be given a liberal construction, it is the opinion of the committee that such disjunctive or conditional submission of the issues in two questions is permissible. To hold otherwise would be to violate the spirit of the rules, and give them a strict construction violating Rule No. 1.

8 Tex. B.J. 281 (1945).

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Rule 745

Question: Where the trial of a suit for forcible entry and detainer pending in the justice court is postponed by agreement of counsel for more than six days without a supporting affidavit showing good cause for the postponement as required by Rule 745, does such a postponement cause the case to become dormant and prevent the Justice from proceeding with the trial thereof at a later date?

Answer: No. It is the opinion of the Subcommittee that the provisions of Rule 745 providing that the case may be postponed not exceeding six days on a showing of good cause supported by affidavit are to enable either party who desires a speedy trial to obtain same; but the provisions of said Rule may be waived by the agreement of all parties, and the waiver thereof will not affect the jurisdiction of the justice over the case nor his right to proceed with the trial thereof at any proper time on due notice to the parties.

Rule 745 was taken without any change from Article 3983, and it had been held under said Article that the postponement of the case beyond the six-day period without affidavit showing good cause did not affect the jurisdiction of the justice court to try the case subsequently. See Calhoun v. Kirkpatrick, 155 S.W. 686 (Tex. Civ. App.-San Antonio 1913).

8 Tex. B.J. 426 (1945).

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Rule 114

Question: Citation by publication issued by the District Clerk on August 28, 1945, commanded the defendant to appear and answer "at or before 10 o'clock A. M. of the first Monday after the expiration of forty-two days from the date of issuance hereof, the same being September 24th, 1945." This date was an error and should have read October 15th, 1945. The citation was published on September 7th, September 14th, September 21st, and September 28th, 1945.

Is the Citation and service thereunder good after October 15th, 1945; or does the error of the Clerk in inserting September 24th instead of October 15th, 1945, nullify the citation and the service thereunder?

Answer: Rule 114 relating to the requisites of Citation by Publication states, among other things: "If issued from the District Court or County Court the citation shall command such parties to appear and answer at or before 10 o'clock A. M. of the first Monday after the expiration of 42 days from the date of issuance thereof, specifying the day of the week, the day of the month, and the time of day the defendant is required to answer."

The Rule contemplates and requires that the citation not only command the defendant to appear at or before 10 o'clock A. M. of the first Monday after the expiration of 42 days from the date of issuance, but that it also specify the day of the week and the day of the month and the time of day the defendant is required to answer. The day of the month, and even the month, specified by the citation in the above illustration was incorrect, and therefore the citation was obviously defective. Although the citation showed on its face that it contained an error, that fact would not necessarily render the error immaterial, because the defendant reading the citation would not know whether the error was made in the date of issuance of the citation or in the date inserted as the day upon which he should answer. Therefore, as the citation stands in such defective condition, the Sub-committee is of the opinion that it would not constitute legal service.

This opinion does not undertake to pass upon the question of whether the citation could be amended under Rule 118 under circumstances indicated above.

8 Tex. B.J. 559 (1945).

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Rule 89

Question: Rule 89 provides that upon a court’s sustaining a plea of privilege, the case should be transferred to the proper court, while Article 2019 provided that the case should be transferred to the court having jurisdiction of the person of the defendant, and Article 2020 provided that the venue should be changed to the proper court of the county having jurisdiction of the parties and the cause. Under Rule 89 may a court, upon sustaining a plea of privilege, transfer a case to a court which has jurisdiction and exclusive venue under the law, but which is not situated in a county which is the residence of the defendant?

Answer: Yes – In the opinion of the Committee, the court hearing the plea of privilege may transfer the case to a court having jurisdiction and exclusive venue of the case regardless of whether the defendants reside in such county or not.

If, for instance, a trespass to try title was filed in a county where non of the defendants reside and in which the land was not located and several of the defendants residing in different counties should file pleas of privilege, the court should transfer the case to the District Court of the County where the land was situated, even though none of the defendants resided therein.

8 Tex. B.J. 559 (1945).

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Rule 753

Statement: In forcible entry and detainer proceedings, the defendant appears in the justice court, the case is tried there and brought up on appeal under the following conditions:

1. The pleadings of the plaintiff are written; the defendant pleads orally in the justice court:

(a) Judgment is for the defendant and the plaintiff appeals;

(b) Judgment is for the plaintiff and the defendant gives notice and files a proper bond as required by the rules, the transcript is sent up, the plaintiff appears in court on the 6th day and asks the court to give him a judgment by default, the defendant having made no appearance.

2. The defendant has filed written pleadings in the justice court:

(a) Judgment is for the defendant and the plaintiff appeals;

(b) Judgment is for the plaintiff and the defendant appeals and complies with all the requirements of the rules but files no other pleadings in the county court.

Questions: 1. If the defendant appeals and files a sufficient bond seasonably, has he entered his appearance, although he plead orally in the justice court?

2. If the plaintiff appeals, is the defendant required to file further pleadings provided he has a written answer in the justice court?

3. Is it proper for the court or ethical for the plaintiff's attorney to take a judgment against the defendant, as is ordinarily done in other civil actions when the defendant fails to answer, without any other further notice to the defendant?

Answers: 1. We think it is necessary for the defendant who appeals to enter his appearance before the case is called for trial. His answer in the justice court is not an appearance in the appellate court nor is his filing of the transcript in the appellate court an appearance.

2. If the plaintiff appeals, it is not required that the defendant file further pleadings in the appellate court if he has filed a written answer in the justice court, but it is required that he make an appearance in the appellate court. Such appearance may be in person or by attorney or agent and be noted on the docket and entered in the minutes. Rule 120. An answer shall also constitute an appearance. Rule 121.

3. In answer to that part of your inquiry as to whether it is proper for the court or ethical for the plaintiff's attorney to demand judgment against the defendant without other or further notice to the defendant, we cannot undertake to pass on the question of ethics. We think, however, that Rule 753 is not mandatory or inflexible and that the court has the discretion to determine whether the demand of the movant for judgment should be granted under all the circumstances and that the judgment when so entered will not result in manifest injustice. Since the judgment of the appellate court is final and absolute, we believe that before the court grants the plaintiff's motion, it should make some inquiry as to why the defendant has not appeared. Explanatory of our views, it is well to bear in mind that the essential purpose of forcible entry and detainer proceedings was to provide a speedy method of determining the right of a person to possession of real property without the necessity of resorting to an action upon the title. The rules did not change this purpose. The changes which were made in the rules were designed to make the remedy more speedy and efficacious and the parties must, therefore, always be on the alert until the case is disposed of. The effect of amended Rule 753, effective at the end of December, 1943, was to change the appearance day from "the first day of the next term of the county court" (which the committee thought was required by Rule 751, 8 Tex. B.J. 37) to five full days after the transcript was filed in the county court if it was then in session. Under this amended rule, if the appellate court was not in session when the transcript was filed, a case could be tried when the court was in session after the expiration of five full days after the transcript was filed in the county court. The prime objective of the rules was to secure the just, fair and equitable adjudication of the rights of the litigants under the established principles of substantive law (Rule 1), and this should be constantly borne in mind, and is an admonition that snap judgments should, as far as possible, be avoided.

9 Tex. B.J. 92 (1946).

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Rule 109

Question: Under Rule 109, citation by publication, is it necessary for the affidavit to set forth the acts which constitute the diligence of the affiant in locating the defendant, or may the affiant merely use the general allegation that after due diligence he has been unable to locate the whereabouts of the defendant?

Answer: Rule 109 was redrafted by an amendment effective February 1, 1946. (8 Tex. B.J. 532 (1945)). The revised rule was designed to correct abuses which had grown up under the old rule, particularly in divorce cases but to a lesser extent in other types of cases, where the attorney would make the affidavit that the residence of the defendant was unknown to him, which no doubt was the fact, but in truth and in fact his client knew the residence of the defendant and where personal service could be had upon him. While the revised rule does not specifically require that the affidavit set forth the acts which constitute the diligence of the affiant in locating the defendant, we think this is desirable and the better practice in view of the mandatory requirement of the rule that "it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant, or to obtain service of non-resident notice, as the case may be, before granting any judgment on such service." However, we believe the affidavit would be good if it alleged diligence only in general terms.

9 Tex. B.J. 262 (1946).

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Rules 4, 742

Question: In forcible entry and detainer, Rule 742 provides that citation shall be served at least six days before the return day thereof. In the computation of time, Rule 4 provides that the day of the act is not to be included, but the last day of the period so computed is to be included. Forcible entry and detainer, being a special proceeding, is the time under Rule 742 governed by Rule 4? For illustration, could a citation in forcible entry and detainer served on the defendant on May 21, 1946, be properly returnable on May 27, 1946?

Answer: It is the opinion of the Subcommittee that Rule 4 is applicable in construing Rule 742, and that a citation in forcible entry and detainer served on the defendant on May 21st, 1946, would be properly returnable on May 27th, 1946.

Rule 4 provides a general rule of construction, and the fact that forcible entry and detainer is a special proceeding does not make Rule 4 inapplicable if it is otherwise pertinent. By its express terms Rule 4 may be invoked "in computing any period of time prescribed or allowed by these Rules, by order of court, or by any applicable Statute .... "

It will be noticed that the service of citation provided for in a forcible entry and detainer suit under Rule 742 calls for service upon the defendant "at least six days before the return day thereof," and its terminology does not follow the wording of Rule 101 in regard to citation in the District and County Courts which provides that the defendant must answer on the Monday next after the expiration of twenty days from the date of service."

Under the proper construction of Rule 742, in the light of the provisions of Rule 4, service on May 21st would constitute service six days before May 27th, and accordingly the citation would be properly returnable on May 27th.

9 Tex. B.J. 262 (1946).

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Rules 114, 115, 116, 117, 647

Questions: In a condemnation suit under Article 3264, where the residence of the defendant is unknown and it is necessary to obtain citation by publication, the following questions are presented:

1. Does Section 8 of Article 3264 authorize service by the posting of the notice or citation, when construed in connection with Article 29 (a), Section 5?

2. Does Rule 647 authorize service of citation in such a proceeding by posting instead of by publication?

3. Do Rules 114 to 117, inclusive, authorize the posting of citation for 28 days in lieu of publication, should there be a refusal on the part of one newspaper in an adjoining county to publish the citation at the statutory rates?

Answers: Question number 1 solely involves a construction of Statutes as distinguished from the Rules of Procedure, and therefore the Subcommittee does not feel that it is within its province to answer said question. Whether Article 3264 is so worded as to invoke the provisions of Article 29 (a) is not a matter over which this Subcommittee should undertake to express an opinion. However, the provisions of Article 3264, Section 8, expressly state that "Such notice may be served by publication in the manner provided for such service of citation by publication in other civil cases in the district or county court," and therefore the Subcommittee is of the opinion that citation by publication may be served in such a situation in the manner provided for by Rules 114 to 117.

In answer to question No.2, the Subcommittee is of the opinion that Rule 647 is not applicable to citation by publication nor to the notice provided for by Article 3264 in condemnation proceedings because such notice is in the nature of a citation. Therefore, we answer the second question in the negative.

We answer Question No.3 in the negative. Rules 114 to 117 provide solely for the service of citation by publication, and they do not make any provision for serving such citation by posting. If one newspaper in an adjoining county refuses to publish the citation at the statutory rates resort should be had to another newspaper to make the publication of the citation.

9 Tex. B.J. 262 (1946).

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Rule 330

Questions: In counties where there is one District Court of general jurisdiction having continuous terms, and there is another District Court having criminal jurisdiction and civil jurisdiction only as to divorce and tax suits, which court does not have continuous terms;

I. Does Rule 330 apply to the court having general jurisdiction and continuous terms?

II. Does "civil jurisdiction" as used in Rule 330 mean general civil jurisdiction or does the term apply to courts having limited jurisdiction such as set out above?

Answers: I. Rule 330 applies to all civil actions in District Courts in counties where:

1. The only District Court having civil jurisdiction has continuous terms.

2. All District. Courts having civil jurisdiction have continuous terms.

Since both of such courts have civil jurisdiction and one of them does not have continuous terms, then Rule 330 would not apply to either of such courts in such county.

II. It is our opinion that the words "civil jurisdiction" as used in Rule 330 would apply to all courts having civil jurisdiction regardless of how limited the civil jurisdiction may be.

The object of the rule is to prevent having different rules of procedure in the same county. In other words, if Rule 330 applies to the Court of General Civil Jurisdiction and not to the Court of Limited Jurisdiction, then as to divorce and tax suits, there would be different rules of procedure in such cases depending on which court tried the case which would result in confusion and would probably result in prejudice to a litigant's right of appeal by errors made by his attorney.

9 Tex. B.J. 262 (1946).

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Rule 167

Question: Assuming that a passenger is injured on a common carrier, and after the injury, but before the injured passenger leaves the conveyance, the conductor or person in charge of, the conveyance secured the name of certain persons on the conveyance who witnessed the accident, can such injured passenger as plaintiff file a motion under Rule 167 and require the defendant carrier to disclose the names of such witnesses?

Answer: In our opinion, the answer is No. The source of Rule 167 is Federal Rule 34, but the Federal Rule does not contain the proviso:

-- provided that the rights herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence of transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen.

In our opinion, the proviso above quoted prevents the plaintiff from securing such information under the Rule and because of the proviso, the decisions under the Federal Rules contrary to this opinion would not be in point.

In our opinion, the injury had occurred prior to the time the names of the witnesses were secured even though they were secured while the plaintiff was still a passenger.

9 Tex. B.J. 319 (1946).

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Rules 533, 534, 535, 537

Question: In the Justice Court under Rules 533, 534, 535 and 537, if a personal citation is served on appearance day, or on the day subsequent, of the term to which it is returnable, would it be good service for a subsequent term?

Answer: No. The above rules were taken from Articles 2400, 2401, 2404 and 2009 of the Revised Statutes. The only change with reference to personal citation was that the citations should be directed to the party rather than to an officer of a named county.

The above statutes relating to the Justice Court procedure did not require ten days service of citation, but Article 2381 provided that the rules governing District Courts should apply in the Justice Court in the issuance and return of citation.

The Supreme Court in adapting the rules took a part of Article 2009, applying to District and County Courts and in Rule 535 applied it to Justice Courts, requiring ten days service citations.

Article 2036 provided that citations shall be served before the return day thereof. The defendant shall not be required to plead at the return term of the Court unless the citation be served at least ten days before the first day of such terms, exclusive of the days of service and return, but when a citation is served before the return day thereof and less than ten days before the first day of such term, exclusive of service and returns, such service shall compel the defendant to plead at the next succeeding term.

Article 2036 was repealed by the rules and was not carried into the new rules.

In view of the above it is the opinion of the committee that to be effective at all, the citation must be served at least ten days before the appearance day stated therein, and unless this is done the defendant is not required to answer at any time before a new citation is served on him.

10 Tex. B.J. 109 (1947).

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Rule 4

Question: Article 4632 of the Revised Civil Statutes prescribes that a suit for divorce shall not be heard or the divorce granted before the expiration of thirty days after the same is filed. Under the decisions rendered prior to the adoption of the rules, the court held that thirty full days must elapse between the filing of the suit and the date of trial not including the date of such filing or the date of such trial. Rule No. 4 prescribes that in computing any period of time prescribed or allowed by these rules by order of court or by applicable statute, the day of the act shall not be included but that the last day of said period shall be included in computing the time. Under Rule 4 is it legal to try a divorce suit on the 30th day after it is filed not including the day of filing of the suit?

Answer: Under the plain provisions of Rule No. 4, it is the opinion of the committee that the trial of divorce suit may be had on the 30th day after the same has been filed not counting the day of filing. This would permit the trying of a case one day earlier than was permitted under the law existing prior to the effective date of the rules. Since this committee does not believe that the provisions of the statute are jurisdictional but rather a matter of procedure, we believe that the provisions of Rule 4 should be applied to such a cause of action.

We are aware of the cases of Eldridge v. Eldridge, 259 S.W. 209 (Tex. Civ. App.-San Antonio 1924), and Snow v. Snow, 223 S.W. 240 (Tex. Civ. App.-San Antonio 1920), which hold under the law prior to the effective date of the rules that a judgment taken on the 30th day was void, thus indicating that it was a matter of jurisdiction. We believe the reasoning in Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77 (1933) by the Supreme Court would indicate that Article 4632, was not jurisdictional. The Aucutt case held that Article 4631 having to do with residence of the plaintiff was not jurisdictional but rather a matter of venue. Applying the same rule, we believe that Article 4632 is a matter of procedure rather than jurisdiction. This is supported also by the heading of Article 4632 which is "Procedure."

10 Tex. B.J. 109 (1947).

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Rules 381, 386

Question: Does the trial court have the authority and discretion to extend the fifty-day period under Rule 381 where application for such extension is submitted subsequent to the expiration of the fifty-day period but prior to the expiration of the sixty-day period within which the Statement of Facts must be filed in the appellate court?

Answer: Yes. Rule 381, Subdivision (b) authorizes the trial court to extend the time for filing the Statement of Facts. The rule contains no provision limiting the time when it may be filed.

Rule 386 governing the time for filing Statement of Facts in Court of Civil Appeals contains a provision fixing the time within which request for extension must be made. The absence of such provision in Rule 381 would seem to sustain the conclusion that the trial court may grant an extension requested subsequent to the expiration of the fifty-day period, providing such extension does not delay the filing within the required time in the Court of Civil Appeals.

The following obiter dicta statement in Seaboard Fire & Marine Ins. Co. v. Halbert, et al., 173 S.W.2d 180 (Tex. Civ. App.-El Paso 1943), sustains this view:

"Also it is thought that if an approval of the Statement of Facts is obtained from the trial judge during the sixty-day period, but after the expiration of the fifty days, same may be filed in the trial court during the sixty-day period."

10 Tex. B.J. 109 (1947).

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Rules 320, 330

Question: The District Courts of McLennan County have continuous terms except for the following provisions: "unless the business of the court shall be sooner disposed of." (Article 199, -19, 54, 74, as amended May 22, 1937.)

Do these courts come within Rule 330, "Rules of Practice in Certain District Courts," or do these courts come within Rule 320 in regard to the time in which to file motions for new trial?

Answer: In the opinion of the Committee, the District Courts of McLennan County are governed by Rule 330 and not Rule 320. Article 199, Sections 19, 54 and 74 as amended by the 45th Legislature in 1937 provides "each of said terms may continue until and including the Saturday next preceding the date for the beginning of the next succeeding term unless the business of the term shall be sooner disposed of." Article 199, Sections 17, 48, 67 and 79, provides that the District Courts of Tarrant County "shall continue until the business is disposed of." In the case of Super-Cold Southwest Co. v. Green & Romans, 185 S.W.2d 749 (Tex. Civ. App.-Fort Worth 1945), the Fort Worth Court of Civil Appeals held that the District Courts of Tarrant County are regulated by Rule 330. Also see Gillete Motor Transp. Co. v. Wichita Falls & S. R.R. Co. , 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943).

The Legislature, in creating continuous terms for the District Courts in Judicial Districts Nos. 1, 2, 3, 7, 10, 12, 16, 18, 21, 22, 24, 27, 29, 30, 31, 32, 33, 35, 36, 38, 47, 49, 50, 51, 52, 56, 63, 64, 69, 70, 72, 81, 84, 85, 86, 90, 103, 106, 107, 108, 109, 110, 112 and 119, uses substantially the following language: "each term ... may continue until the date herein fixed for the beginning of the next succeeding term." That language was construed by the Dallas Court of Civil Appeals in the case of Federal Underwriters Exch. v. Bailey, 175 S.W.2d 618 (Tex. Civ. App.-Dallas 1943), as bringing the 86th District Court of Kaufman County under Rule 330. Likewise in the case of Traders & General Ins. Co. v. Scott, 189 S.W.2d 633 (Tex. Civ. App.-Fort Worth 1945), the Fort Worth Court of Civil Appeals said that the 30th Judicial District Court of Wichita County, whose terms are substantially the same as Kaufman County, comes under Rule 330.

In a few instances the Legislature uses the term "shall continue" insteadof "may continue" but obviously the Legislature intended for these Courts to come under Rule 330 even though by the language "may continue" the term of Court could, as it may in the District Courts of McLennan County, come to an end when the business of the Court is disposed of before the end of the term.

10 Tex. B.J. 155 (1947).

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Rules 15, 101

Question: (1) In guardianship proceedings in the County Court should the citation required by Article 4116, Vernon Statutes, as amended, for minors over fourteen years of age be directed to the minor or should it be directed to any sheriff or any constable within the State of Texas, or should it be directed to the sheriff or any constable of the county within which the minor appears to be at the time?

(2) In such proceeding as is assumed in Question No.1 above should the notice required by Article 4114, Vernon Statutes, as amended, be directed to the sheriff or any constable of the county within which the proceeding is pending, or should notice be directed to any sheriff or any constable within the State of Texas?

Answer: Articles of the Statutes Nos. 2021, 2022, 2228 and 2286 have been expressly repealed.

Article 2286 provided in substance that all writs and processes should be directed to the sheriff or any constable of the proper county. Since this Article has been repealed, it appears that Rules 15 and 101 now contain the sole provisions in respect to the form and contents of writs and citations.

It is true that Rule 2 preserves the rules of procedure in guardianship proceedings as provided by a statute, but there seems to be no article in the probate statutes providing to whom a citation should be directed. Article 3310 sets forth the requisites of citation in probate but does not state to whom the citation should be directed. This is true also in respect to Articles 3310a, 3311, 3333, 4414, 4415 and 4416. Article 3333 does state to whom the Clerk is to deliver the citation, stating that it shall be delivered to the sheriff or constable of the proper county.

Since Article 2286 has been superseded by Rules 15 and 101, and since the probate articles do not contain an express provision as to whom the notice or citation should be directed, it is the opinion of the Committee that the notice required by Article 4114 and the citation provided by Article 4116 should be directed to any sheriff or constable within the State of Texas.

10 Tex. B.J. 271 (1947).

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Rules 63, 66, 166

Question: "In construing Rule 63 and Rule 166 would an order under Rule 166, on the pre-trial of the case, to the effect that such pre-trial was the beginning of the trial and that no amendment would be permitted thereafter without permission of the court, conflict with the provisions of Rule 63, which provides that amendments may be made without leave of the court prior to seven days before the trial of the case?"

Answer: It is the opinion of the Committee that such an order would be in conflict with Rule 63, and that the pre-trial procedure does not fix the date of the beginning of the trial, and a party would have the right to file amended pleadings up until seven days prior to the actual trial. When Rule 63 is read in connection with Rule 66, permitting trial amendments, it appears clear that it is the spirit of the rules that there should be little, if any, stricture imposed upon the filing of amendments. Rule 166 is limited to preliminary matters and is not intended to fix a date to be taken as the actual beginning of the trial of the case.

11 Tex. B.J. 276 (1948).

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Rules 72, 329

Question: "In a case in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by attorney of his own selection, and the defendant within two years after such judgment was rendered has filed a motion for new trial, supported by affidavit, showing good cause, is service upon the attorney of record for the plaintiff, by mailing a copy of such motion to the attorney of record, as provided in Rule 72, sufficient compliance with paragraph (a) of Rule 329 ?"

Answer: No. It appears that Rule 329 contemplates actual service of citation. The requirement that the parties adversely interested in such judgment shall be "cited, as in other cases," is not met merely by mailing a copy of the motion to the attorney of record.

11 Tex. B.J. 276 (1948).

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Rule 277

Question: "In a case submitted on special issues where the question at issue is whether or not a deed is a mortgage or a deed absolute would the trial court be authorized to submit in conjunction with other instructions, the following instruction to the jury: 'You are instructed that evidence relied on for the purpose of affixing the character of a mortgage to a deed absolute must be clear, strong and convincing.' "

Answer: No. The Committee is of the opinion that such an instruction would constitute reversible error. Rule 277 does not contemplate such a general charge. See Johnson v. Zurich General Accident & Liab. Co., 146 Tex. 232, 205 S.W.2d 353 (1947).

11 Tex. B.J. 277 (1948).

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