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Rule 353. Notice of Limitation of Appeal (1981)

TEXT

No attempt to limit the scope of an appeal shall be effective as to a party adverse to the appellant unless the severable portion of the judgment from which the appeal is taken is designated in a notice served on the adverse party within 15 days after the judgment is signed, or, if a motion for new trial is filed by any party, within 75 days after the judgment is signed.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: The rule is amended to make all periods run from the date the judgment is signed.

ADVISORY OPINIONS

(No. 29) Question: What is the effect of the footnote following Rule 353, which states that "Appeal is perfected when notice of appeal is given"; and the footnote following Rule 363, stating that the change by amendment of March 31, 1941, was the addition of the words "or if affidavit is contested, and when the contest is overruled."

Answer: Said footnotes have no effect upon the meaning of these rules.

The original order of the Supreme Court adopting the rules provides that "only the rules themselves are adopted by this Court"; and the order adopting the amendments of March 31, 1941; expressly provides that "The amendments to the notes at the foot of the respective rules are not made as parts of the respective rules." (See BAR JOURNAL, October, 1941, pages 619, 623 and 624.)

The footnote following Rule 353 is incorrect; and the footnote following Rule 363 is incomplete.

As originally adopted, Rule 363 provided that an appeal was perfected by giving notice of appeal, without reference to the filing of the bond, and the footnote so stated. (See Rule 363 in BAR JOURNAL, December, 1940.) Thereafter, on March 31, 1941, the Rules were amended so as to revert to the former statutory requirement of filing the bond as one of the steps in perfecting the appeal; and the footnote to the contrary following Rule 363 was stricken out and a new footnote inserted. The new footnote, however, is incomplete in that it only shows a portion of the added matter and does not reflect the entire change accomplished by the amendment.

When Rule 363 was thus amended on March 31, 1941, the footnote under Rule 353 should have been stricken out insofar as it states that "Appeal is perfected when notice of appeal is given"; and it was merely an oversight that this portion of said footnote was not stricken out.

5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 14 (1945).

(No. 113) Question: Can a non-appealing appellee now cross-assign error in the Court of Civil Appeals, and if so, must his cross-assignments be confined to the matters presented by appellant's appeal?

Answer: Laying aside consideration of complaints by one appellee against another appellee and the need, vel non, of motion for new trial where appellee desires to complain of the whole or a part of trial court's judgment or order, we are of the opinion that appellee in the Court of Civil Appeals may, without cross-appeal or cross-assignment of error, urge against appellant any complaints concerning the matter as to which the appellant has perfected his appeal, by the use of "points" in his brief. Cross-appeal was mentioned in original Rule 420 but the amendment to the rule omits mention of it. It is not necessary in Texas as to any complaints concerning the matter brought up by appellant; and that ordinarily means all complaints that appellee has. See Ward v. Scarborough, 236 S.W. 441 (Tex. Comm'n App. 1922) and Woldert Grocery Co. v. Booneville Elevator Co., 99 Tex. 581, 91 S.W. 1082 (1906). In some cases, however, appellant may sever, that is, take up a part only of the matter as it stood in the trial court. Woeltz v. Woeltz, 93 Tex. 548, 57 S.W. 35 (1900); Weems. v. Watson, 91 Tex. 35, 40 S.W. 722 (1897); Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960 (1937). See Rule 353.

In such cases, under the same authorities, appellee may not complain of anything within the scope solely of the part not brought up. In the brief the appellee's complaint may be called a “point” (Rules 418, 420) or, doubtless, a "cross-point," and of course must be accompanied by briefing as required by the rules above cited.

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