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Rule 387. Affirmance on Certificate (Mar1941)

TEXT

(a) If the appellant shall fail to file a transcript of the record in the proper time the appellee may upon motion have the case affirmed on certificate by filing in the appellate court a certified copy of the judgment and a certificate of the clerk of the trial court stating the time when, and how such appeal or writ of error was perfected.

(b) If a copy of the bond accompanies such certificate, the judgment shall be affirmed against the sureties thereon.

(c) Affirmance of the judgment on certificate may be had at any time after the right to file the transcript has expired; but no affirmance of the judgment on certificate shall be had against the sureties upon the bond unless the motion to so affirm has been filed within one year after the right to file the transcript has expired.

(d) Ten days' notice by mail of the hearing of the motion shall be given by the clerk to the appellant.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: Subdivision (e) of the original rule has been dropped because bond or affidavit, etc., have elsewhere been made nessary to the perfection of appeal.

ADVISORY OPINIONS

(No. 55) Question: 1. Where an application for writ of error was filed and granted before the rules became effective, may the Supreme Court after such rules have become effective properly dismiss such an application without allowing an amendment, upon the ground that jurisdiction because of conflict of decisions is not correctly shown, and properly overrule a motion to amend in such respect?

2. How and under what circumstances may an application for writ of error in the Supreme Court be amended?

Answer: Rule 814 insofar as it is applicable reads: "These rules shall take effect on September 1, 1941. They shall govern all proceedings in actions brought after they take effect and also further proceedings in actions then pending.... "

We are of the opinion that motion to amend, as well as the overruling of such a motion and the dismissal of a writ of error, would be "further proceedings" as contemplated by the above rule.

Rule 1 requires that the rules be given a liberal construction "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." It is the clear intent of Rules 481 and 504 that the appellate courts should allow reasonable amendments at any time to correct or amend defects or irregularities in want of form. Rule 437, which is applicable to the Courts of Civil Appeals, provides, in substance, that a judgment should not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, "either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of time for filing transcript or statement of facts except as contemplated by Rule 387." Rule 504, which specifically applies to the Supreme Court, is to the same effect as Rule 437, which, as stated, applies to actions pending in the Courts of Civil Appeals.

The committee strongly believes that Rules 437, 481, and 504 mark an advanced step in procedure, and that compliance with them will enable the courts in the future to dispose of cases on their merits and reduce to a minimum dismissals for technical procedural defects.

No purpose stands out in the rules with greater prominence than this, viz.; that the attainment of justice, according to the principles of substantive law, is the desideratum in every case; that the rules of procedure should expedite, and not frustrate, the trial of cases on their merit and that irregularities either in matters of form or substance should be, disregarded unless such indulgence and liberality will result in injustice.

Cochran v. Wool Growers Central Storage Co., 140 Tex. 904, 166 S.W.2d 904 (1943), which passes upon a motion to amend an application for writ of error is, we think, in accordance with the above views.

Where the question is raised as to whether the court should dismiss a granted writ of error because of fault in the wording or showing of the application we think that Rule 504, already cited; mandatorily conditions such an order upon the allowance of amendment, for such rule, insofar as here applicable, reads:

"The Supreme Court will not affirm or reverse a judgment or dismiss a writ of error for defects or irregularities in appellate procedure either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities... "

This mandatory provision for amendment only applies, however, where, the court bases its action upon some such fault.

For a feasible practice in this connection see Hodo v. Mexican Nat'l R.R. Co., 88 Tex. 523, 524, 32 S.W. 511 (1895), and Hilliard v. White, 88 Tex. 591, 593, 32 S.W. 525, 526 (1895).

6 Tex. B.J. 20 (1943) reprinted in 8 Tex. B.J. 30 (1945).