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Rule 385. Appeals From Interlocutory Orders (1943)

TEXT

Appeals from interlocutory orders (when allowed by law) may be taken by

(a) Filing an appeal or supersedeas bond within twenty days after rendition of the order appealed from, conditioned as required by the rules governing appeals generally; and

(b) Filing the record in the appellate court within twenty days after rendition of the order appealed from. Provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record or any part thereof.

(c) Where the appeal is from an order sustaining a plea of privilege, transfer of the venue and trial upon the merits shall be suspended pending the appeal.

(d) Where the appeal is from an order granting or refusing a temporary injunction, or granting or overruling a motion to dissolve such an injunction, the cause may be heard in the Court of Civil Appeals or the Supreme Court on the bill and answer and such affidavits and evidence as may have been admitted by the judge of the court below. Such appeal shall not have the effect to suspend the order appealed from, unless it shall be so ordered by the court or judge entering the order.

(e) In all appeals from interlocutory orders there shall be no motion for a new trial, and the trial judge need not file findings of fact or conclusions of law, provided, however, it shall be permissible for the trial judge to file findings of fact and conclusions of law, if they are filed so as not to delay the filing of the record in the appellate court.

Amended by order of June 16, 1943, eff. Dec. 31, 1943.

ADVISORY OPINIONS

(No. 98) Question: In regard to Rule 87 concerning the notice to be given after the filing of a controverting plea: (1) Did the rule appeal the former statute, Article 2008; (2) Does the rule require service of notice upon each defendant in the case; (3) Is notice required only as to the defendant filing the plea of privilege?

Answer: In our opinion the first question should be answered in the affirmative, that is that Article 2008 has been repealed except for the portion of the article providing that "Either party may appeal from the judgment sustaining or overruling the plea of privilege." Said quoted part of the statute was considered jurisdictional and it was not repealed when the new rules were enacted, and said unrepealed portion is set out for context only following Rule 384. The remaining portion of Article 2008 was repealed and supplanted by Rule 87, and also partly by Rule 385. See list of repealed statutes enumerated in the Supreme Court order and published at the close of the rules in the Bar Journal.

In response to the second and third questions, it is the opinion of the sub-committee under Rule 87 that formal notice by mailing by registered mail of a copy of the controverting plea together with the judge's notation thereon is only required to be given to the defendant or de­fendants filing the plea of privilege. This con­clusion is reached because the provisions of the former statute which required service "on each defendant" were changed by the rule so as to require the mailing of the notice to "the de­fendant ... at the post office address stated in such plea of privilege."

Although we feel that the formal notice re­quired in the rule need only be given to the de­fendant filing the plea of privilege, nevertheless it is obvious that the other defendants in the case can be affected by the disposition of the plea of privilege, and therefore we feel that they should be advised of the date upon which the hearing will be had so that they may be present if they so desire at the time of the hearing. This is not because of any express provision in the rule, but merely because every party to a suit should be advised of the time that the court is going to hear a motion or take up any other matter in the case that might affect his interests.

While the subject is not directly within the questions, we feel that we should call attention to the fact that by amendment effective De­cember 31, next, the method of service has been extended to include a mere delivery to the de­fendant or his attorney of the controverting plea with the notation thereon of date of hearing. In other words, service may be had by manual delivery of the controverting plea as well as by registered mail.

6 Tex. B.J. 276 (1943) reprinted in 8 Tex. B.J. 35 (1945).