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Rule 429. Amendment: Defects Appearing At or After Submission
Should it be apparent during the submission or afterwards that the case has not been properly prepared, as shown in the transcript, or properly presented in the brief or briefs, or that the law and authorities have not been properly cited, which will enable the court to decide the case, it may decline to receive the submission; or, if received, may set it aside and make such orders as may be necessary to secure a more satisfactory submission of the case; or should it appear to the court, after the submission of the cause, that the statement of facts has been prepared in violation of the rules, the court may require the appellant to furnish a correct statement of facts, and upon his failure to do so may disregard it. If the violation of the rule be flagrant, the court may disregard the statement of facts altogether, unless counsel for the appellant shall make it appear by affidavit or otherwise that he prepared a statement giving what, in his opinion, he deemed a fair presentation of the evidence, prepared in accordance with the rules, and that he was unable to get it agreed to or approved. Should counsel for appellant show that he has used due diligence to have a proper statement of facts filed, and that the statement of facts as prepared is the result of the fault of the counsel for the opposite party, such as his failure or refusal to agree to a proper statement presented to him, the costs of the statement, if ordered, shall be taxed against the appellee.
Source: Texas Rule 53 (for Courts of Civil Appeals), with minor textual change.
Oct. 29, 1940, eff. Sept. 1, 1941.
Repealed by order of April 10, 1986, eff. Sept. 1, 1986.
(No. 119) Question: In a case tried in the justice court, the losing party filed an appeal bond, approved by the justice of the peace, which was regular in manner and form and conditioned as required by law. It recited, however, that the appeal had been taken to the county court. The civil jurisdiction of the county court had been abolished and the appeal lay to the district court, to which the transcript was sent by the justice of the peace and there filed in due time. Appellee filed a motion to dismiss the appeal on the ground that the district court had no jurisdiction because it appeared from the recitals in the appeal bond that the appeal had been taken to the county court. Appellant, invoking Rule 571, moved the court to allow him five days within which to prepare and file an amended appeal bond to correct the error in the original bond. Should the appeal be dismissed or should the appellant be allowed five days within which to file an amended bond?
Answer: We are of the opinion that appellant should be allowed five days within which to file an amended bond. Under Rule 571 the appeal was perfected by filing the bond with the justice of the peace. The transcript an appeal was lodged in due time in the court which had jurisdiction of the appeal. All parties to the suit were aware of this fact. They were required by the rule to make their appearance at the next term of the court "without further notice." The appellee did in fact make his appearance in due time in the court which actually had jurisdiction of the appeal. He was, therefore, not surprised nor had he sustained any injury by reason of the defect and irregularity in the bond which was manifestly due to a clerical error and it probably resulted from the use of a printed form.
The rules of civil procedure, in their general scope, manifest the clear intent of the Supreme Court that appeals shall not be dismissed for clerical errors or for defects in mere form or substance when they can be cured by amendment, particularly where no injury results to the adverse party. Rule 481 relating to the Supreme Court provides that the application, or brief of the argument in support thereof, or reply thereto may be amended at any time when justice requires and specifically provides that the record and the appeal bond may be amended in the Supreme Court precisely as the same could be done in the Court of Civil Appeals under Rules 428, 429, 430 and 431. These rules established a new and wholesome procedure. They were adapted to prevent injustice and the denial of the substantive rights of parties which had often theretofore resulted from undue subservience to mere legal form.
We are also of the opinion that the matter is not jurisdictional. It has been held that an informal or defective bond not objected to may confer jurisdiction. Tynberg v. Cohen, 67 Tex. 220, 2 S.W. 734 (1887); Southern Pac. Co. v. Staley, 76 Tex. 418, 13 S.W. 480 (1890); Ricker v. Collins, 81 Tex. 662, 17 S.W. 378 (1891). Irregularities in a bond are waived by an appearance and amendment of pleadings and delay in making a motion to dismiss and such defects may be waived by continuance by consent. Cason v. Laney, 82 Tex. 317, 18 S.W. 667 (1891); Casan v. Westfall, 83 Tex. 26, 18 S.W. 668 (1892); Futch v. Palmer, 11 Tex.Civ.App. 191, 32 S.W. 566 (1895). There is no sound reason why, in the circumstances stated, the appellant should not be allowed time within which to file an amended bond and we think Rule 571 requires that it be done.
7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 44 (1945).
(No. 131) Question: In San Antonio Joint Stock Bank v. Malcher, 164 S.W.2d 197, 199 (Tex. Civ. App.-San Antonio 1942), the Court of Civil Appeals held that points presented by appellant, but not briefed were waived. The decision was followed by Piedmont Fire Ins. Co. v. Ladin, 174 S.W.2d 991 (Tex. Civ. App.-Galveston 1943) and, during the present year, by Broussard v. L. Cartwright Realty Co., 179 S.W.2d 777 (Tex. Civ. App.-Amarillo 1944), and Orange Laundry Co. v. Stark, 179 S.W.2d 841 (Tex. Civ. App.-Amarillo 1944). Has appellant any remedy in a Case of this sort?
Answer: Yes. His most obvious remedy is, of course, to comply with the briefing rules when he prepares his brief.
We are of the opinion that he has another remedy; that is, a motion to amend. We beg to quote from a number of rules and cases in support of this answer.
Rule 422. The purpose of briefs being to acquaint the court with the points relied upon, the manner in which they arose, together with such argument of facts and law as will enable the court to decide the same, a substantial compliance with these rules will suffice in the interest of justice; but for a flagrant violation of the rules the court may require the case to be rebriefed.
Rule 429. Should it be apparent during the submission or afterwards that the case has not been properly prepared, as shown in the transcript, or properly presented in the brief or briefs, or that 'the law and authorities have not been properly cited, which will enable the court to decide the case, it may decline to receive the submission; or, if received, may set it aside and make such orders as may be necessary to secure a more satisfactory submission of the case; ...
Rule 431. Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe, and if the court shall strike or refuse to consider any part of a brief, the court shall on reasonable terms allow the same to be amended or supplemented.
Rule 437. 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, ... "
In Gillette Motor Transp. Co. v. Wichita Falls & S. Ry. Co., 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943), the Court decided that under the rules above quoted it could, as it did, "after submission of the cause, allow amendment of 'appellant's brief' in order to present points of error not presented in the original brief."
There are similar rules as to applications for writ of error and briefs in the Supreme Court, viz. Rules 469 subd. (f), 481, 491, and 504.
In Cochran v. Woolgrowers Central Storage Co., 162 S.W.2d 941, the Supreme Court, having previously granted a writ of error, dismissed it because the application in its Grounds of Jurisdiction on the subject of conflicts of decisions was not in accordance with the rules. Subsequently, on motion far rehearing, it observed that the application had been filed before the rules went into effect but granted a motion to amend which was filed after their effective date, saying in support of its action: "An examination of Rule 481, supra, will disclose that it provides: ‘The application, ... may be amended at any time when justice requires and upon such reasonable terms as the Court may prescribe...' Rule 504, supra, provides: 'The Supreme Court will not ... 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,...' Clearly these two rules authorize this court to grant one who prosecutes a writ of error to this court the right to amend his application, where it is defective either as to form or substance. Such being the case, an application which is defective, in that it fails to properly state grounds of jurisdiction under Section 1 of Article 1821, R.C.S., or Subdivision (b) of Rule 469, can be amended in this court at any time when, in the opinion of the court, justice so requires. Furthermore, we think the right to amend maybe granted even though the original application for writ of error was filed before the effective date of Rules 481 and 504, supra. This holding in no way violates Rule 814, supra, defining the effective date of our present Texas Rules of Civil Procedure. We will therefore order that the amended application for writ of error be filed, and will now consider this case on such amended application."
See also Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944), in which the same court refused to consider a point of error which was contained in neither the motion for rehearing nor the application. The court, however, took care to add: "It would serve no purpose in this instance to permit the application for writ of error to be amended under Rule 504 because the point was not assigned in the motion for rehearing in the Court of Civil Appeals."
These decisions, and the rules upon which they are based very clearly indicate, we think, that a proper practice on behalf of a party whose appellate contentions have not been considered an account of fault in briefing may and, when he actually has a meritorious contention, should be motion to amend.
7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).