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Rule 325. Errors on Motions
In cases of motion's for continuance, or for change of venue, or other preliminary motions made arid filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; and the judge may recite in his, order disposing of the motion for new trial the grounds of such ruling. Nothing in Rule 324 shall render a motion for new trial unnecessary in the instances mentioned in this Rule nor in instances of newly discovered evidence, misconduct, fraud or the like.
Source: Texas Rule 70 (for District and County Courts).
Change: Omission of the provision in the rule for bills of exception and substitution there: for of the last part of the rule, beginning "unless."
Oct. 29, 1940, eff. Sept. 1, 1941.
Repealed by order of July 11, 1977, eff. Jan. 1, 1978.
(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. 94) Question: What are the requisites of the "points" in appellant's brief?
Answer: Quotations from Rule 418 and one of its appended notes, from an opinion of the Supreme Court clearly state and explain the requisites.
The pertinent part of Subdivision (b) of Rule 418 reads: "Such points will be sufficient if they direct the attention of the court to the error relied upon and they should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief. Assignments of error need' not be copied in the brief, and may be cited by reference only.”
Assignments of error are thus only referred to in the brief. They are not to be confused with "points" which are to be set out in the brief. Upon the subject of assignments of error see Rule 374 and compare Rules 324 and 325.
A note appended to Rule 418 reads: "The ‘points’ provided for are not to be formal propositions, but brief expressions of the questions involved in the appeal. For example, ‘First Point: The error of the court in refusing to charge upon the issue of appellant's liability under the family purpose doctrine. Germane to Assignment of Error No. 4, Transcript p. 38.’”
In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), the Supreme Court, in disagreeing with expressions in the opinion of the Court of Civil Appeals upon this subject, said: "Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. The object of a 'point' in the brief, as provided for in Rule 418, is to call the Court's attention to the questions raised and discussed in the brief. It is intended that the 'point' shall be short or in few words. It is not necessary that a 'point' be complete within itself, in the sense that it must, on its face, show that the matter complained of presents reversible error. If a 'point' is sufficient to direct the Court's attention to the matter complained of, the Court will look to the 'point' and the statement and argument thereunder to determine question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the 'point' in 'the light of the statement and argument thereunder."
See also to the same effect Federal Underwriters Exch. v. Lynch, 140 Tex. 516, 168 S.W.2d 653 (1943).6 Tex. B.J. 142 (1943) reprinted in 8 Tex. B.J. 34 (1945).