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Rule 434. If Judgment Reversed


When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed for the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.

Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.

Provided, second, that if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not occurred.

Provided, third, that if the error arises from a defect, either in substance or in form, in the pleadings, or from a variance between pleadings and evidence, and such error may be cured by amendment of the pleadings without detriment to the substantial rights of any of the parties, such amendment shall be allowed in the appellate court.

Source: Art. 1856.

Change: Addition of the first two provisos recommended in Bill No. 10 of the Texas Civil Judicial Council in its 1936 report. See 8 Ann. Rep. (1936), 48. Retains in part Rule 62a.

Oct. 29, 1940, eff. Sept. 1, 1941.


March 31, 1941, eff. Sept. 1, 1941

July 22, 1975, eff. Jan. 1, 1976

Repealed by order of April 10, 1986, eff. Sept. 1, 1986.


(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. 86b) Question: As Rules 434 and 503 are worded like former Rule 62a, should they, with respect to prejudicial error, receive the interpretation that such former Rule received where the pertinent statutes, such as were held to be paramount in the case above cited, have themselves been repealed and turned into rules?

Answer: In our opinion the answer should be in the negative. The Supreme Court inTexas Employers' Ins. Ass'n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942) construed the part of these Rules that regulates appellate severance in the manner in which the corresponding part of Rule 62a had been construed because the wording of Rule 62a had been repeated, in such respect, in these new Rules; but the Court added the following qualification concerning the part of such new Rules which in the light of Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822 (1923), manifestly relates to prejudicial error:

"In regard to our holding, supra, that the repromulgation in the same language of a former rule of civil procedure carries with it the interpretation placed by this Court on the former rules, we wish to say that such holding assumes that no other rule of this Court has been promulgated which would change or modify the meaning of the former rule. Furthermore, our holding in this regard assumes that the interpretation placed on the former rule was not influenced by any then-existing, but not repealed, procedural statute."

6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 32 (1945).

(No. 114) Question: Does the opinion of the Supreme Court in Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943), adversely affect the abolition of the general demurrer and the provisions for ready amendment of defects of appellate procedure under the Rules of Civil Procedure?

Answer: We think that it does not. In the case referred to, plaintiff's petition in the trial court averred an untenable basis of recovery, defendant's general demurrer was sustained, plaintiff refused to amend, and the suit was consequently dismissed. On appeal the Court of. Civil Appeals reversed, because in its opinion the petition stated a cause of action. The Supreme Court held that the sustaining of a general demurrer was error, under Rule 90, but that it could not reverse the judgment of the district court for such error "because the appellant presented this case to the Court of Civil Appeals on assignments that confined that court to law questions which test the sufficiency of the petition in the district court as against a general demurrer" and because the petition showed that there was no cause of action; and it accordingly reversed judgment of the Court of Civil Appeals and affirmed that of the district court. Motion for rehearing was overruled.

Rule 90 requires that general demurrers shall not be used but that in contested litigation all faults of pleading are waived unless specifically pointed out. A want of cause of action or the failure to state one may be raised but if so, it must be raised specifically in order that the court and also the pleader may proceed with notice of the fault and that amendment may be effected. Rules 90 and 66.

If a general demurrer is urged, the court at the instance of the opposite party or on its own motion should not sustain it but should strike or overrule it or require it to be reworded. Rules 68, 90. By sustaining the general demurrer the trial court therefore commits error. The question then arises whether the error is reversible.

The court in the present decision answers in the negative, apparently because the appellant did not, on appeal, assign error or, complain as to the improper act of the trial court in considering and sustaining a general demurrer. But the opinion impliedly shows that the court was still more persuaded by the conviction that the case was considered in the manner in which the parties desired and that a correct result was reached.

In the state of the record it would seem that by a general demurrer defendant obtained all of the advantage that he would have got from a special one; his demurrer was sustained; and it would seem that the plaintiff waived any objection to the generality of the demurrer by failing to point out that a general demurrer should not be used and by standing on his petition when the general demurrer was sustained. Rule 90.

The defect in appellate procedure above referred to lay in appellant's failure to assign as error the action of the trial court in considering a general demurrer when a special demurrer should have been used. In most judge-tried cases, including any case tried solely on demurrer, the assignment of error is the "point" in the brief. Rules 374, 418. If there was no such point or no sufficient point in the present case and the appellant had asked leave in the Court of Civil Appeals to supply one, or if the appellate disposition had been based upon his omission or fault in briefing, leave to amend in that respect should have been granted before final disposition in such court. Rules 431, 437. But as the Supreme Court says, " ... an examination of plaintiff's brief in the Court of Civil Appeals discloses that he plants himself squarely on the proposition that as a matter of law" the case he alleged was recoverable, when it was not. So that amendment of the brief would have done the plaintiff no more good than amendment of his petition in the first instance. That is, none.

And finally, the ruling of the trial court, for that reason, was not one that was calculated to cause an improper judgment, and for that reason there should have been no reversal on account of it. Rules 434 and 503.

The case, from a procedural standpoint, may be summarized by an illustration. Suppose plaintiff should represent to the trial court and again to the Court of Civil Appeals that his petition showed all he could allege or prove and that he desired to stake his recovery upon it, and suppose those courts should be of the opinion that no recovery could be had in a case of that character whether amendment was had or not. The duty of the courts in such a situation would seem to be no plainer than was the duty of the Supreme Court in the present instance.

The decision, we believe, enforces two underlying principles of the rules: that the trial court should reach the merits of the case before it and that the appellate court should reach the merits of the appeal.

7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 41 (1945).