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Rule 268. Motion for Instructed Verdict

TEXT

A motion for directed verdict shall state the specific grounds therefor.

Source: Last sentence of Federal Rule 50 (a) unchanged.

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

ADVISORY OPINIONS

Question: What is the distinction between a demurrer to the evidence and a motion for an instructed verdict?

Answer: The Rules of Civil Procedure do not make any provision for demurrers to the evidence. In view of the fact that such Rules provide for a motion for a directed verdict, but make no provision for a demurrer to the evidence, the common law practice of demurring to the evidence is not a recognized mode of procedure in Texas.

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

(No. 116) Question: In Bednarz v. State, 142 Tex. 138, 176 S.W. 2d 562 (1943), the judgment of the trial court which was largely in favor of defendant was affirmed, notwithstanding that the defendant filed no answer whatever, and the judgment of the Court of Civil Appeals, State v. Bednarz, 174 S.W.2d 743 (Tex. Civ. App.-San Antonio 1943), which reached a contrary result, was accordingly reversed. Does the decision of the Supreme Court make a written answer immaterial?

Answer: No. In any case where such an omission occurs, the plaintiff, if he so desires, may o n default day or thereafter until the time o f trial, claim and have a judgment by default, or he may call upon the court by proper procedure to require an answer to be filed and in this way avail himself of the acknowledged virtues of written pleading in preventing surprise and delineating issues. Rules 90, 91, 268, 274 and see Rule 66.

But if, as in the instant case and in many cases where the fact issues are not complicated, the plaintiff takes no such step but is content to try the matter without an answer, he may do so, and in that event he has no ground to complain. See Rule 67, which sources in Federal Rule 15 (b). That this principle in Texas long antedated the Federal Rules is shown by numerous decisions cited in the opinion in this Bednarz case.

It is contrary to the policy of this subcommittee to express opinions upon pending litigation. The case at hand is not in that class, however, as motion for rehearing has been overruled.

7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 43 (1945).