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Rule 324. Prerequisites of Appeal (Dec1941)

TEXT

In all jury cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court or to sue out a writ of error, if the judgment of the court is rendered five days or more before the adjournment of the court for the term, or, if, upon request or for any other reason, the court continues the term so as to cover a period of five days from the rendition of a judgment, a motion for new trial shall be filed. It is the object of this rule to require a motion for new trial to be filed as a prerequisite to an appeal in all cases unless the case is tried before the court without a jury, or a peremptory instruction is given in the case, or the appeal is based upon some error arising after the action of the trial court upon the motion for new trial, or unless there is not full five days' time from the rendition of the judgment to the adjournment of the court for the term. Provided, however, that when the judgment is rendered non obstante veredicto, or notwithstanding the jury finding on one or more special issues, the appellee may complain of any prejudicial error committed against him over his objection on such trial. A motion for new trial shall not be necessary in behalf of appellee, except where he complains of the judgment or a part thereof.

An assignment in a motion for new trial shall not be a necessary prerequisite to the right to complain on appeal of the action of the court in giving an instructed verdict, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto, or in overruling a motion for judgment for appellant on the verdict.

Amended by order of Sept. 20, 1941, eff. Dec. 31, 1941: In the first paragraph the concluding wording beginning "by cross assignments of error" has been omitted, and the sentence beginning "A motion for new trial" has been added. Also, in the last paragraph as appearing in the amendment of March 31, 1941, after the words "instructed verdict" the following wording has been interpolated "or in withdrawing the case from the jury and rendering judgment."

Note amended by order of April 12, 1962, eff. Sept. 1, 1962: Reference to cross-assignments of error and to motion for new trial deleted from sentence dealing with appellee’s right to complain of errors committed against him on the trial. Sentence added providing that a motion for new trial shall not be necessary in behalf of appellee, except where he complains of the judgment or a part thereof. Provisions of paragraph dealing with right to complain on appeal without an assignment in a motion for new trial expanded to include action of court “in withdrawing the case from the jury and rendering judgment.”

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).