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Rule 428. Amendment: Record

TEXT

If anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court, either before or after the record has been transmitted to the appellate court, or the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter.

Source: Federal Rule 75 (h), last sentence, with minor textual change.

Oct. 29, 1940, eff. Sept. 1, 1941.

AMENDMENTS

June 10, 1980, eff. Jan. 1, 1981

Repealed by order of April 10, 1986, eff. Sept. 1, 1986.

ADVISORY OPINIONS

(No. 42) Question: Where there is not a complete statement of facts on appeal will all reasonable presumptions be indulged in favor of the judgment of the lower court as was the rule under the former practice?

Answer: Our correspondent, in support of his view of the law under the former practice cites inter alia: O'Brien v. Hart, 80 S.W.2d 464 (Tex. Civ. App.-Beaumont, 1935); Sawyer v. First Nat'l Bank of Hico, 41 Tex.Civ.App. 486, 498, 93 S.W. 151, 158 (1906); Newnom v. Williamson, 46 Tex.Civ.App. 615, 103 S.W. 656 (1907).

The subcommittee is of the opinion that the presumption referred to would not apply under the new rules.

Our correspondent observes that: "If this same presumption should be indulged under the new rules, we would defeat the very purpose intended to be accomplished by authorizing the filing of only a partial statement of facts."

This observation seems to the subcommittee to be correct in the light of wording in the rules which is now recited.

A main purpose of the rules concerning appeal is announced by Rule 370 in this way:

"In view of the crowded condition of the dockets of the appellate courts, the record and briefs on appeal should be limited as far as possible to the questions relied on for reversal. The primary purpose of the courts is to administer justice between the parties with as little expense and delay as possible. Liberal provisions are therefore made in these rules for amendments' on appeal to bring forward any material matter which may have been omitted. With this protection the bar is expected to cooperate in shortening the records in furtherance of the provisions of these rules."

Pursuant to this purpose, Rule 377, respecting the statement of facts, requires that: "All matters not essential to the decision of the questions presented on appeal shall be omitted."

At a later point the same rule, carrying out this policy, reads that: " ... the appellant shall deliver or mail to the appellee or his counsel and file with the clerk of the court a designation in writing of the portions of the evidence desired, and shall specify the portions desired in narrative form, if any, and the portions desired in question and answer form, if any, and the portions that are desired to be omitted. Within ten days thereafter any other party to the appeal may file a designation in writing of any additional portions of the evidence to be included, specifying the portion desired in narrative form, if any, and the portions desired in question and answer form, if any."

Then there is this further alternative practice looking to the same end:

"Rule 377-a. Statement of the Points to Be Relied On. - For the purpose of inducing the opposing party to accept an abbreviated transcript or statement of facts, the appellant, or the appellee to the extent that he complains of the judgment or any part thereof, may file with the clerk of the trial court a statement of the points on which he intends to rely on appeal; and he shall thereafter be limited to such points."

It will be seen from these rules that the appellee may readily get into the statement of facts anything that the appellant omits. For this reason and in order to encourage curtailment of the statement of facts, it seems to be within the purpose of the' rules to depart from the old presumption.

If it should be that either of the parties omits something that should be in the statement of facts, there are liberal provisions in the rules for amendment even after the statement of facts gets into the appellate court. One of the rules to this end is 428. It reads:

"If anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court, either before or after the record has been transmitted to the appellate court, or the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter."

Another of the rules to the same end is 437. It applies to the Courts of Civil Appeals, and reads:

"A judgment shall 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 the time for filing transcript and statement of facts except as contemplated by Rule 386." (The exceptions have nothing to do with the present situation.)

Rule 504 applies to the Supreme Court and is to the same effect.

So that, the subcommittee agrees with its correspondent's views when he says in concluding his letter:

"In view of the abundant provisions contained in the new rules authorizing the appellee to designate any additional matter which he desires to have brought up on the statement of facts, and further provisions allowing him to supplement the statement of facts later, if necessary, the old presumption should not prevail."

5 Tex. B.J. 236 (1942) reprinted in 8 Tex. B.J. 17 (1945).

(No. 62) Question: Where a transcript, containing findings of fact and conclusions of law, has been filed in the Court of Civil Appeals within the sixty days' time prescribed by Rule 386, but no statement of facts has been filed within such time, if, pursuant to a stipulation, a statement of facts is afterward tendered to the Clerk of the Court of Civil Appeals for filing which shows the evidence upon which the judge made his findings, is it the duty of the clerk to file such statement of facts?

Answer: We consider that the correct answer is in the negative. While a stipulation without order of court will of itself justify the filing of a supplemental statement of facts, on authority of Rule 428, the tardy filing of an entire statement of facts can only be had upon order of the court, which in such respect, as a relaxation of the applicable period of limitation that was imposed for the purpose of expediting appellate business, has a discretion to grant or refuse the motion. See Rules 437 and 386, Vernon's Ann. Civ. St.,

Art. 1839, 2 Tex. Jud. C. Rep. 4-5, and 18 Tex. Law Rev. 8 and Plate III. That the filing in the present instance was stipulated would doubtless be a cogent reason for granting the motion if timely made. That findings of fact were in the instant transcript might formerly have indicated some sort of an election to go up in that way, but under the present Rules that fact would not weigh against the filing of the statement of facts since the policy of the Rules is not to punish missteps and changes of plan but to reach the merits of Appeals. Rules 1, 370, 386, 428. In our opinion, however, none of these considerations is for the clerk. He has no authority to file a tardy statement of facts, of which no part has been filed in time, unless his Court so orders.

5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 26 (1945).

(No. 69) Question: Does the answer in No. 42 on Page 236 of 5 Tex. B.J. undertake hold that all presumptions in favor of the judgment of a lower court are to be done away with?

Answer: No. The intention was to say that there will be no presumption that matter omitted from the statement of facts sustains the judgment.

5 Tex. B.J. 428 (1942) reprinted in 8 Tex. B.J. 27 (1945).

(No. 119) Question: In a case tried in the justice court, the losing party filed an appeal bond, approved by the justice of the peace, which was regular in manner and form and conditioned as required by law. It recited, however, that the appeal had been taken to the county court. The civil jurisdiction of the county court had been abolished and the appeal lay to the district court, to which the transcript was sent by the justice of the peace and there filed in due time. Appellee filed a motion to dismiss the appeal on the ground that the district court had no jurisdiction because it appeared from the recitals in the appeal bond that the appeal had been taken to the county court. Appellant, invoking Rule 571, moved the court to allow him five days within which to prepare and file an amended appeal bond to correct the error in the original bond. Should the appeal be dismissed or should the appellant be allowed five days within which to file an amended bond?

Answer: We are of the opinion that appellant should be allowed five days within which to file an amended bond. Under Rule 571 the appeal was perfected by filing the bond with the justice of the peace. The transcript an appeal was lodged in due time in the court which had jurisdiction of the appeal. All parties to the suit were aware of this fact. They were required by the rule to make their appearance at the next term of the court "without further notice." The appellee did in fact make his appearance in due time in the court which actually had jurisdiction of the appeal. He was, therefore, not surprised nor had he sustained any injury by reason of the defect and irregularity in the bond which was manifestly due to a clerical error and it probably resulted from the use of a printed form.

The rules of civil procedure, in their general scope, manifest the clear intent of the Supreme Court that appeals shall not be dismissed for clerical errors or for defects in mere form or substance when they can be cured by amendment, particularly where no injury results to the adverse party. Rule 481 relating to the Supreme Court provides that the application, or brief of the argument in support thereof, or reply thereto may be amended at any time when justice requires and specifically provides that the record and the appeal bond may be amended in the Supreme Court precisely as the same could be done in the Court of Civil Appeals under Rules 428, 429, 430 and 431. These rules established a new and wholesome procedure. They were adapted to prevent injustice and the denial of the substantive rights of parties which had often theretofore resulted from undue subservience to mere legal form.

We are also of the opinion that the matter is not jurisdictional. It has been held that an informal or defective bond not objected to may confer jurisdiction. Tynberg v. Cohen, 67 Tex. 220, 2 S.W. 734 (1887); Southern Pac. Co. v. Staley, 76 Tex. 418, 13 S.W. 480 (1890); Ricker v. Collins, 81 Tex. 662, 17 S.W. 378 (1891). Irregularities in a bond are waived by an appearance and amendment of pleadings and delay in making a motion to dismiss and such defects may be waived by continuance by consent. Cason v. Laney, 82 Tex. 317, 18 S.W. 667 (1891); Casan v. Westfall, 83 Tex. 26, 18 S.W. 668 (1892); Futch v. Palmer, 11 Tex.Civ.App. 191, 32 S.W. 566 (1895). There is no sound reason why, in the circumstances stated, the appellant should not be allowed time within which to file an amended bond and we think Rule 571 requires that it be done.

7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 44 (1945).