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Rule 68. Court May Order Repleader


The court, when deemed necessary in any case, may order a repleader on the part of one or both of the parties, in order to make their pleadings substantially conform to the rules.

Source: Texas Rule 29 (for District and County Courts), unchanged.

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


(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).