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Rule 420. Brief: Appellees (Dec1941)

TEXT

The brief of the appellee shall reply to the points relied upon by the appellant in due order when practicable; and in case the appellee desires to complain of any ruling or action of the trial court, his brief in regard to such matters shall follow substantially the form of the brief for appellant.

Amended by order of Sept. 20, 1941, eff. Dec. 31, 1941: The rule has been redrafted.

ADVISORY OPINIONS

(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).