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Rule 370. Record on Appeal To Be Shortened
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.
Source: New rule.
Oct. 29, 1940, eff. Sept. 1, 1941.
Repealed by order of June 10, 1980, eff. Jan. 1, 1981.
(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. 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. 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. 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. 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).