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Rule 817. Rules by Other Courts


The Comission of Appeals, each Court of Civil Appeals, and each district and each county court may, from time to time, make and amend rules governing its practice not inconsistent with these rules. Copies of rules and amendments so made shall upon their promulgation be furnished to the Supreme Court of Texas. In all cases not provided for by these rules, the Courts of Civil Appeals and district and county courts may regulate their practice in any manner not inconsistent with these rules.

Source: Federal Rule 83, with minor textual change

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


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. 36) Question: In view of Rules 72 and 75 are attorneys entitled to withdraw the original drafts of judgments and orders which are on file but which have therefore been placed in the minutes of the court?

Answer: We are of the opinion that since Rules 72 and 75 specify the particular papers to which they apply, and since papers of the type that you mention are not included or fairly implied in those so specified, there is under those rules no prohibition of the withdrawal. However, we know of no authority whereunder an attorney is entitled to withdraw papers of the type now under consideration. As the clerk is the custodian of file papers, it would seem that, except by sufferance of the clerk, nothing in his possession can rightfully be withdrawn by an attorney. It may become very important for the draft of a judgment or order to remain in his custody to the end that the clerk may complete his fee bill (Article 3930), that his accounts may be fully audited, or that the entry may be corrected if not in accordance with the draft. The trial judge can always expressly regulate a matter of this sort by local rules promulgated under Rule 817.

5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 16 (1945).

(No. 96) Question : How is notice given and served of the application for the appointment of a receiver under Rule 695 when the residence of the defendant is unknown?

Answer: We are of the opinion that the trial court can provide for notice in such a case. Rule 817, Ashford v. Goodwin, 103 Tex. 491, 131 S.W. 535 (1910), 20 Tex. L. Rev. 632, 5 Tex. B.J. 171 (No. 36), 15 C.J. 901, 21 C.J.S. 261.

The above conclusion, in our opinion, follows from the circumstance that the rule does not undertake to regulate the notice, and yet requires it, and that the court has both inherent power and power under Rule 817to provide a procedure. The procedure must be reasonable. The test of reasonableness would seem to lie in considerations of what under the circumstances would most likely bring notice home to the defendant. Service upon an agent or servant in charge of the property or upon a. member of defendant's family at his last Texas abode would seem to be preferable. If these are not possible, posting at the place and as in the posting statutes, or even publication, suggest themselves. See McDonald v. Mabee, 243 U.S. 90 (1917) upon the question of sufficient notice. In view of this case, we are of the opinion that if the defendant has an abode in the state, or had an abode at the time he left the state, a preferred service would be by the leaving of process at such place.

6 Tex. B.J. 193 (1943) reprinted in 8 Tex. B.J. 35 (1945).