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Rule 91. Special Exceptions (Mar1941)
A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to.
Amended by order of March 31, 1941, eff. Sept. 1, 1941: The word "or" changed to "in" between "allegations" and "the."
|Prior Amendments||Future Amendments|
|Oct. 29, 1940, eff. Sept. 1, 1941|
(No. 116) Question: In Bednarz v. State, 142 Tex. 138, 176 S.W. 2d 562 (1943), the judgment of the trial court which was largely in favor of defendant was affirmed, notwithstanding that the defendant filed no answer whatever, and the judgment of the Court of Civil Appeals, State v. Bednarz, 174 S.W.2d 743 (Tex. Civ. App.-San Antonio 1943), which reached a contrary result, was accordingly reversed. Does the decision of the Supreme Court make a written answer immaterial?
Answer: No. In any case where such an omission occurs, the plaintiff, if he so desires, may o n default day or thereafter until the time o f trial, claim and have a judgment by default, or he may call upon the court by proper procedure to require an answer to be filed and in this way avail himself of the acknowledged virtues of written pleading in preventing surprise and delineating issues. Rules 90, 91, 268, 274 and see Rule 66.
But if, as in the instant case and in many cases where the fact issues are not complicated, the plaintiff takes no such step but is content to try the matter without an answer, he may do so, and in that event he has no ground to complain. See Rule 67, which sources in Federal Rule 15 (b). That this principle in Texas long antedated the Federal Rules is shown by numerous decisions cited in the opinion in this Bednarz case.
It is contrary to the policy of this subcommittee to express opinions upon pending litigation. The case at hand is not in that class, however, as motion for rehearing has been overruled.
7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 43 (1945).