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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.
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).
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).
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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
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).
(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).
(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).
(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).
(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).
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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
(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).
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).
(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).
(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).
(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).
(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).
(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).
(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).
(No. 50) Question: Does the plaintiff show good cause in not filing his controverting affidavit within the ten days period (Rules 86 and 87) by proving that defendant failed to furnish him with a copy of the plea of privilege (Rules 72 and 73)? The question is stated in another form: After filing suit can the plaintiff disregard it until he is furnished with a copy of the plea of privilege?
Answer: Rule 72 providing for delivery or mailing to the adverse party or, his attorney of record of any pleading, plea, or motion "which is not by law or by these rules required to be served upon the adverse party" is a wholesome rule and ought to be, and we think will be, readily complied with by the attorneys because of its mutual advantage to them. Nevertheless, the Committee thinks that the Rule is directory and failure to deliver to the plaintiff a copy of the plea of privilege does not dispense with the necessity of the plaintiff's filing a controverting plea; but it may constitute grounds for an extension of the time within which plaintiff should file the controverting plea. Although attorneys have a duty to keep in touch with the developments in their cases, the extent to which they should inspect the records is naturally affected to some extent by Rule 72 requiring the delivery to them by their adversaries of copies of all pleadings, pleas or motions filed in the case.
Under Rule 5, which permits the enlargement of the time within which a specified act is required or allowed to be done, and the liberal construction required by Rule 1 to be given to all the rules in order to adjudicate "the rights of litigants under established principles of substantive law," a wide discretion is vested in the courts in dealing with questions of the character raised in your inquiry. We are of opinion that the courts have the power, upon consideration of all the facts and circumstances, and in the interest of justice, to permit a controverting affidavit to be filed after the expiration of ten days from appearance day upon compliance by the plaintiff with the provisions of Rule 5. When requests for enlargement are applied for under this Rule each case, must necessarily be determined by the court upon its own facts in accordance with the right of the case.
Ordinarily, where the plaintiff and his attorney have no notice or knowledge of the fact that a plea of privilege has been filed, and the defendant has failed to deliver a copy thereof as required by Rule 72, we would be inclined to feel that this would constitute good cause under Rule 5 for granting of an extension of time for the filing of a controverting plea. This would not render nugatory and void that part of Rule 86 quoted in correspondent's letter, as the filing of a controverting plea would still be a prerequisite to the overruling of a proper plea of privilege. It would merely have a bearing upon the time within which the controverting plea could be filed.
5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 24 (1945).
(No. 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).
(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).
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).
(No. 56) Question: Do the new rules allow a part of a pleading to be left out of the transcript? Is it permissible to omit from the transcript exceptions contained in a pleading that are not material to the points to be raised on appeal?
Answer: It is our opinion that the above questions should be answered in the affirmative.
Where the parties enter into a written stipulation as to what the transcript or statement of facts shall contain, Rule 375 expressly makes such a stipulation controlling. Rules 376, 377, and 378 also recognize the controlling effect of any agreement of the parties in preparing the record. Therefore it is clear that by written agreement any part of any document can properly be omitted from the transcript.
Even where there is no written agreement by the parties, it is our opinion that exceptions or portion of a pleading that are not material to the points to be raised on appeal can properly be omitted from the transcript. Rule 370 shows that it is the spirit and purpose of the rules to abbreviate the record as much as possible and to omit therefrom all matter not material to the appeal. Rule 376 provides for the inclusion in the transcript of "the material pleadings," and we feel that when this is construed in the light of the general spirit of the rules it authorizes the inclusion of only a part of a pleading when the other part is not material to the questions involved in the appeal.
Where the appellant desires that only a portion of a particular pleading be included in the transcript his written designation should set out clearly what parts or paragraphs of the pleading he desires included, or if more convenient he could set out which parts or paragraphs of the particular pleading he desires omitted as being immaterial to the appeal. The appellee can then request that all or parts of the omitted matter be included, should the appellee deem said parts material to his contentions on the appeal. Of course the pleadings should not be garbled or deletions made in such a manner as to affect the meaning of the portion that is included in the transcript.
5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 23 (1945).
(No. 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).
(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).
(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).
(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).
(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).
(No. 62) Question: Where a transcript, containing findings of fact and conclusions of law, has been filed in the Court of Civil Appeals within the sixty days' time prescribed by Rule 386, but no statement of facts has been filed within such time, if, pursuant to a stipulation, a statement of facts is afterward tendered to the Clerk of the Court of Civil Appeals for filing which shows the evidence upon which the judge made his findings, is it the duty of the clerk to file such statement of facts?
Answer: We consider that the correct answer is in the negative. While a stipulation without order of court will of itself justify the filing of a supplemental statement of facts, on authority of Rule 428, the tardy filing of an entire statement of facts can only be had upon order of the court, which in such respect, as a relaxation of the applicable period of limitation that was imposed for the purpose of expediting appellate business, has a discretion to grant or refuse the motion. See Rules 437 and 386, Vernon's Ann. Civ. St.,
Art. 1839, 2 Tex. Jud. C. Rep. 4-5, and 18 Tex. Law Rev. 8 and Plate III. That the filing in the present instance was stipulated would doubtless be a cogent reason for granting the motion if timely made. That findings of fact were in the instant transcript might formerly have indicated some sort of an election to go up in that way, but under the present Rules that fact would not weigh against the filing of the statement of facts since the policy of the Rules is not to punish missteps and changes of plan but to reach the merits of Appeals. Rules 1, 370, 386, 428. In our opinion, however, none of these considerations is for the clerk. He has no authority to file a tardy statement of facts, of which no part has been filed in time, unless his Court so orders.
5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 26 (1945).
(No. 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).
(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).
(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).
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).
(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