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Rule 324. Prerequisites of Appeal (1955)

TEXT

In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that it shall not be so prerequisite where a peremptory instruction is given, a case is withdrawn from the jury and judgment is rendered by the court without a jury, a judgment is rendered, or denied, non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or a motion for judgment on the verdict is made by the party who becomes appellant and is overruled; nor shall a motion for new trial be so required in a non-jury case, in a case coming within, the proviso of Rule 329-a, or in a case where the appeal is based upon some error of the trial court arising after its action upon the motion for new trial. But motion for new trial shall be a necessary prerequisite to consideration of the complaints mentioned in Rule 325. When judgment is rendered non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, the appellee may complain of any prejudicial error committed against him over his objection on the trial. A motion for new trial shall not be necessary in behalf of appellee where he does not complain of the judgment or a part thereof.

Amended by order of July 20, 1954, eff. Jan. 1, 1955: The Rule has been largely rewritten and rearranged.

ADVISORY OPINIONS

(No. 94) Question: What are the requisites of the "points" in appellant's brief?

Answer: Quotations from Rule 418 and one of its appended notes, from an opinion of the Supreme Court clearly state and explain the requisites.

The pertinent part of Subdivision (b) of Rule 418 reads: "Such points will be sufficient if they direct the attention of the court to the error relied upon and they should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief. Assignments of error need' not be copied in the brief, and may be cited by reference only.”

Assignments of error are thus only referred to in the brief. They are not to be confused with "points" which are to be set out in the brief. Upon the subject of assignments of error see Rule 374 and compare Rules 324 and 325.

A note appended to Rule 418 reads: "The ‘points’ provided for are not to be formal propositions, but brief expressions of the questions involved in the appeal. For example, ‘First Point: The error of the court in refusing to charge upon the issue of appellant's liability under the family purpose doctrine. Germane to Assignment of Error No. 4, Transcript p. 38.’”

In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), the Supreme Court, in disagreeing with expressions in the opinion of the Court of Civil Appeals upon this subject, said: "Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. The object of a 'point' in the brief, as provided for in Rule 418, is to call the Court's attention to the questions raised and discussed in the brief. It is intended that the 'point' shall be short or in few words. It is not necessary that a 'point' be complete within itself, in the sense that it must, on its face, show that the matter complained of presents reversible error. If a 'point' is sufficient to direct the Court's attention to the matter complained of, the Court will look to the 'point' and the statement and argument thereunder to determine question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the 'point' in 'the light of the statement and argument thereunder."

See also to the same effect Federal Underwriters Exch. v. Lynch, 140 Tex. 516, 168 S.W.2d 653 (1943).

6 Tex. B.J. 142 (1943) reprinted in 8 Tex. B.J. 34 (1945).

(No. 112) Question: In a jury-tried case in the county court if a material special issue is not answered by the jury, and judgment is rendered for one of the parties, should there be a reversal as in Headstream v. Mangum, 174 S.W.2d 496 (Tex. Civ. App.-Amarillo 1943), by reason of the fact that the failure of the jury to answer such special issue is fundamental error?

Answer: We are of the opinion that the question should be answered in the negative because Rule 324 requires complaints of this sort to be made grounds of the motion for new trial. As we construe the opinion, this procedure was omitted in the trial court in the cited case. If it should be that a ground or grounds of the motion for new trial presented this complaint, there would be no need to resort to fundamental error in order to supply the contention in the appellate court, since under Rule 374 the grounds of the motion for new trial in a case like this constitute the assignments of error.

We do not undertake to answer questions in pending cases, but are informed that the above case has been completed.

7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 41 (1945).