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Rule 237. Appearance Day (Mar1941)

TEXT

If a defendant, who has been duly cited, is by the citation required to answer on a day which is in term time, such day is appearance day as to him. If he is so required to answer on a day in vacation, he shall plead or answer accordingly, and the first day of the next term is appearance day as to him.

If a defendant who is required to answer on a day in vacation file a petition and bond to remove to the Federal Court, said bond may be accepted and approved in vacation either by the clerk or by the judge of the court; and such judge, either in vacation or in term time, and at any place that he may be found within his district, may approve the bond and have entered such order as is proper in regard to the removal of the cause to the Federal Court.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: The last paragraph has been added.

ADVISORY OPINIONS

Question: Notwithstanding Rule 101 requiring answer at or before ten o'clock a. m. of the Monday next after the expiration of twenty days from the date of service, may a defendant, in case such time of answering falls in vacation, postpone his answer until the following term, without risk of default judgment by reason of such late filing, provided the answer is filed promptly at the opening of the term?

Answer: We think so. Under Rule 239 judgment by default can only be entered in term time. Under Rule 237 appearance day as to a defendant who is required to answer on a day in vacation is the first day of the next term. Under Rule 238 the docket is called for default on such appearance day, at ten o'clock a. m., or as soon thereafter as may be practicable, and under the cited rules default judgment can only be taken where there is no answer on file at the time of the call of such docket, whether such call be at such proper time or at a later time that is not in vacation. Note, however, that the second paragraph of Rule 237 provides for vacation procedure in instances of removal to federal court.

This construction of the rules is aided by the past decisions upon the subject, that, notwithstanding a defendant, even in term time, fails to file his answer by the time for default judgment, such judgment cannot be taken against him, if he files an answer before the default is actually taken. See Moore v. Janes, 6 Tex. 227 (1851); Ellett v. Britton, 6 Tex. 229 (1851); Hurlock v. Reinhardt, 41 Tex. 580 (1874); World Co. v. Dow, 116 Tex. 146 (1926).

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).

(No. 27-b) Question: In a divorce case where there is citation by publication may a judgment be taken at a special term, in view of Rule 237?

Answer: The subcommittee feels that its answer should be in the negative for the reason that R. S. Article 1920, which is not repealed, prohibits the bringing of new cases to special terms. While under Rule 237 cases are no longer "brought to a term," the spirit of Art. 1920 is that new cases should not be triable at a special term without defendant's consent, because such practice would be inconvenient or unjust. If a defendant consents to a trial at a special term, the case, however, is different. Upon these subjects see Browder v. Memphis Indep. Sch. Dist., 107 Tex. 535 180 S.W. 1077 (1915), and Guerra v. Guerra, 213 S.W. 360 (Tex. Civ. App.-San Antonio 1919).

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 20 (1945).

(No. 65) Question: Does the perfection of service upon a defendant in vacation justify judgment by default against a non-appearing defendant at a special term?

Answer: No. See question and answer in No. 27-b 5 Tex. B.J. 287. It may be added that the law does not require personal notice to be given of the calling of a special term and that such circumstance would conduce to the injustice of permitting judgment by default at special terms.

(No. 73) Question: Where the time within which a defendant must answer falls in vacation, and the defendant accordingly files a plea of privilege in vacation, does Rule 87 give the plaintiff ten days after appearance day within which to file a controverting plea, or does the plaintiff merely have ten days after the day on which the defendant was required to plea?

Answer: It is the opinion of the subcommittee that under the express terms of Rule 87 the plaintiff has ten days after "appearance day" within which he may file a controverting plea. Appearance day is the first day of' the next term when the day upon which the citation directs the defendant to answer falls in vacation (Rule 237).

Under the statute, before the adoption of the Rules, it was held that even though the defendant filed his plea of privilege before appearance day, the plaintiff still had the stipulated time after appearance day within which to file a controverting plea, and the same is true under the rules.

We feel that in Rule 87 the statutory provision giving the plaintiff a stipulated period after appearance day within which he can file a controverting plea was intentionally retained.

If the citation requires the defendant to answer upon a day that falls in term time, then that day is appearance day (Rule 237), and Rule 87 allows ten days thereafter for the filing of a controverting plea. If, on the other hand, the citation requires the defendant to answer upon a day in vacation, then appearance day is the first day of the next term, and the plaintiff accordingly has ten days from the first day of the term within which to file a controverting plea.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (1945).

(No. 124) Question: Vernon’s Ann. Civ. Stat., Article 200a, Sec. 6, provides that it shall be the duty of a district judge to extend the regular terms of his court to dispose of pending litigation. Now if a civil case is on file during the regular term, but service is not completed during the regular term, and the term is extended to dispose of pending litigation and service is completed within the term as so extended, is this case subject to being called for trial during the extended term in view of Rule 237 defining appearance day and Vernon’s Ann. Civ. Stat., Article 1920 providing that no new civil case can be brought to a special term of the district court?

Answer: The case, in our opinion, may be called for trial and disposed of during the extended term.

The question correctly states the pertinent warding of Articles 200a and 1920. The governing intention of Article 200a, as well as that of the Administrative Judicial Districts Act of which it is a part, is to dispose of pending business and the words "pending litigation" as used in the article fairly have that meaning. The Supreme Court used the phrases as though synonymous in Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S. W.2d 561 (1937), and the Court of Civil Appeals, in Morse v. Hoover, 105 S.W.2d 682 (Tex. Civ. App.-Amarillo 1937), assumed that a contest of a plea of privilege, as yet immature because of want of service, was within the statute. So that a case which has been filed during a regular term is in our opinion "pending litigation," although service has not yet been perfected in it.

Looking to the rules, one finds from Rule 101 that in a personal action such as is involved in the question, a defendant is required to answer on the first Monday after the expiration of twenty days from the date of service; from Rule 237 that if this day is "in term time, such day is appearance day as to him" but if it is "in vacation, he shall plead or answer accordingly, and the first day of the next term is appearance day as to him;" from Rule 238 that on appearance day of a particular defendant "and at the hour named in the citation, or as soon thereafter as may be practicable," the case shall be called by the court, etc., or on the request of plaintiff's attorney; and from Rule 239 that "upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed his answer."

While strictly viewed, these rules only force defendant to trial or default, in the instant situation, at the next regular term, liberally interpreted in the light of Rule 1 and of the purpose of the act at hand, they are saying this: the defendant must file answer within the time mentioned in his citation whether the last day falls in vacation or in term time. If it falls in vacation default can only be taken at the next term because the court can only give a judgment in term time. If, when it arrives, there is a term, the defendant may be compelled to submit to trial if he has an answer on file, or otherwise to default.

This liberal interpretation seems to be the correct one to apply.

We think that, the prohibition of "new civil cases" in the statute about special terms is not applicable here because that is a different sort of a term. Yet even new civil cases are there triable in instances of appearance (Browder v. Memphis Indep. Sch. Dist., 107 Tex. 535, 180 S.W. 1077 (1915)) and would be triable by compulsion, as criminal cases are, except for restrictive wording in the statute.

No such restriction appears in the statute for extended terms.

It should be added, though the question does not involve the situation, that the Browder case above cited would be sufficient authority for defendant's forcing a trial or submitting to a trial by appearance or otherwise at a term of court which, as in the instance of the present extended term, allows the disposition of pending litigation.

7 Tex. B.J. 152 (1944) reprinted in 8 Tex. B.J. 46 (1945).

Question: What is appearance day with reference to withdrawing a case from the court's docket without the necessity of the judge's dismissing it?

Answer: Under Rule 237 appearance day applies to a defendant who has been served or who has accepted service and the rule prescribes the time and manner in which he shall answer. If no citation is ever issued on the petition and there is no acceptance of service there is no appearance day under the rules. Rules 22 to 26, inclusive, require the clerk when a suit is filed to docket the same, etc. We think a suit in which no citation has been issued or served, although not specifically mentioned in the rule, as well as one in which citation has been issued and served and no answer has been filed, may be discontinued in vacation under Rule 162 upon payment of costs, as the underlying principle is the same. It is an orderly procedure, and no one can complain of the discontinuance.

During term time, discontinuance as to a defendant who has not been served is allowable under Rule 161. We think it is desirable and the better procedure that dismissals during term time be made by the judge, if practicable. See Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 708, syllabi 8 and 9 (1944).

8 Tex. B.J. 129 (1945).