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Rule 162. Discontinuance in Vacation
The plaintiff may enter a discontinuance on the docket in vacation, in any suit wherein the defendant has not answered, on the payment of all costs that have accrued thereon.
Source: Art. 2089, unchanged.
Oct. 29, 1940, eff. Sept. 1, 1941.
Dec. 5, 1983, eff. April 1, 1984
July 15, 1987, eff. Jan. 1, 1988. Order to correct and clarify Dec. 16, 1987, eff. Jan. 1, 1988.
Question: What is appearance day with reference to withdrawing a case from the court's docket without the necessity of the judge's dismissing it?
Answer: Under Rule 237 appearance day applies to a defendant who has been served or who has accepted service and the rule prescribes the time and manner in which he shall answer. If no citation is ever issued on the petition and there is no acceptance of service there is no appearance day under the rules. Rules 22 to 26, inclusive, require the clerk when a suit is filed to docket the same, etc. We think a suit in which no citation has been issued or served, although not specifically mentioned in the rule, as well as one in which citation has been issued and served and no answer has been filed, may be discontinued in vacation under Rule 162 upon payment of costs, as the underlying principle is the same. It is an orderly procedure, and no one can complain of the discontinuance.
During term time, discontinuance as to a defendant who has not been served is allowable under Rule 161. We think it is desirable and the better procedure that dismissals during term time be made by the judge, if practicable. See Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 708, syllabi 8 and 9 (1944).
8 Tex. B.J. 129 (1945).