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Rule 431. Amendment: Briefs

TEXT

Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe, and if the court shall strike or refuse to consider any part of a brief, the court shall on reasonable terms allow the same to be amended or supplemented.

Source: New rule.

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

Repealed by order of Dec. 5, 1983, eff. April 1, 1984. Incorporated into Rule 414.

ADVISORY OPINIONS

(No. 114) Question: Does the opinion of the Supreme Court in Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943), adversely affect the abolition of the general demurrer and the provisions for ready amendment of defects of appellate procedure under the Rules of Civil Procedure?

Answer: We think that it does not. In the case referred to, plaintiff's petition in the trial court averred an untenable basis of recovery, defendant's general demurrer was sustained, plaintiff refused to amend, and the suit was consequently dismissed. On appeal the Court of. Civil Appeals reversed, because in its opinion the petition stated a cause of action. The Supreme Court held that the sustaining of a general demurrer was error, under Rule 90, but that it could not reverse the judgment of the district court for such error "because the appellant presented this case to the Court of Civil Appeals on assignments that confined that court to law questions which test the sufficiency of the petition in the district court as against a general demurrer" and because the petition showed that there was no cause of action; and it accordingly reversed judgment of the Court of Civil Appeals and affirmed that of the district court. Motion for rehearing was overruled.

Rule 90 requires that general demurrers shall not be used but that in contested litigation all faults of pleading are waived unless specifically pointed out. A want of cause of action or the failure to state one may be raised but if so, it must be raised specifically in order that the court and also the pleader may proceed with notice of the fault and that amendment may be effected. Rules 90 and 66.

If a general demurrer is urged, the court at the instance of the opposite party or on its own motion should not sustain it but should strike or overrule it or require it to be reworded. Rules 68, 90. By sustaining the general demurrer the trial court therefore commits error. The question then arises whether the error is reversible.

The court in the present decision answers in the negative, apparently because the appellant did not, on appeal, assign error or, complain as to the improper act of the trial court in considering and sustaining a general demurrer. But the opinion impliedly shows that the court was still more persuaded by the conviction that the case was considered in the manner in which the parties desired and that a correct result was reached.

In the state of the record it would seem that by a general demurrer defendant obtained all of the advantage that he would have got from a special one; his demurrer was sustained; and it would seem that the plaintiff waived any objection to the generality of the demurrer by failing to point out that a general demurrer should not be used and by standing on his petition when the general demurrer was sustained. Rule 90.

The defect in appellate procedure above referred to lay in appellant's failure to assign as error the action of the trial court in considering a general demurrer when a special demurrer should have been used. In most judge-tried cases, including any case tried solely on demurrer, the assignment of error is the "point" in the brief. Rules 374, 418. If there was no such point or no sufficient point in the present case and the appellant had asked leave in the Court of Civil Appeals to supply one, or if the appellate disposition had been based upon his omission or fault in briefing, leave to amend in that respect should have been granted before final disposition in such court. Rules 431, 437. But as the Supreme Court says, " ... an examination of plaintiff's brief in the Court of Civil Appeals discloses that he plants himself squarely on the proposition that as a matter of law" the case he alleged was recoverable, when it was not. So that amendment of the brief would have done the plaintiff no more good than amendment of his petition in the first instance. That is, none.

And finally, the ruling of the trial court, for that reason, was not one that was calculated to cause an improper judgment, and for that reason there should have been no reversal on account of it. Rules 434 and 503.

The case, from a procedural standpoint, may be summarized by an illustration. Suppose plaintiff should represent to the trial court and again to the Court of Civil Appeals that his petition showed all he could allege or prove and that he desired to stake his recovery upon it, and suppose those courts should be of the opinion that no recovery could be had in a case of that character whether amendment was had or not. The duty of the courts in such a situation would seem to be no plainer than was the duty of the Supreme Court in the present instance.

The decision, we believe, enforces two underlying principles of the rules: that the trial court should reach the merits of the case before it and that the appellate court should reach the merits of the appeal.

7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 41 (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).

(No. 131) Question: In San Antonio Joint Stock Bank v. Malcher, 164 S.W.2d 197, 199 (Tex. Civ. App.-San Antonio 1942), the Court of Civil Appeals held that points presented by appellant, but not briefed were waived. The decision was followed by Piedmont Fire Ins. Co. v. Ladin, 174 S.W.2d 991 (Tex. Civ. App.-Galveston 1943) and, during the present year, by Broussard v. L. Cartwright Realty Co., 179 S.W.2d 777 (Tex. Civ. App.-Amarillo 1944), and Orange Laundry Co. v. Stark, 179 S.W.2d 841 (Tex. Civ. App.-Amarillo 1944). Has appellant any remedy in a Case of this sort?

Answer: Yes. His most obvious remedy is, of course, to comply with the briefing rules when he prepares his brief.

We are of the opinion that he has another remedy; that is, a motion to amend. We beg to quote from a number of rules and cases in support of this answer.

Rule 422. The purpose of briefs being to acquaint the court with the points relied upon, the manner in which they arose, together with such argument of facts and law as will enable the court to decide the same, a substantial compliance with these rules will suffice in the interest of justice; but for a flagrant violation of the rules the court may require the case to be rebriefed.

Rule 429. Should it be apparent during the submission or afterwards that the case has not been properly prepared, as shown in the transcript, or properly presented in the brief or briefs, or that 'the law and authorities have not been properly cited, which will enable the court to decide the case, it may decline to receive the submission; or, if received, may set it aside and make such orders as may be necessary to secure a more satisfactory submission of the case; ...

Rule 431. Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe, and if the court shall strike or refuse to consider any part of a brief, the court shall on reasonable terms allow the same to be amended or supplemented.

Rule 437. 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, ... "

In Gillette Motor Transp. Co. v. Wichita Falls & S. Ry. Co., 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943), the Court decided that under the rules above quoted it could, as it did, "after submission of the cause, allow amendment of 'appellant's brief' in order to present points of error not presented in the original brief."

There are similar rules as to applications for writ of error and briefs in the Supreme Court, viz. Rules 469 subd. (f), 481, 491, and 504.

In Cochran v. Wool Growers Central Storage Co., 162 S.W.2d 941 (Tex. 1942), the Supreme Court, having previously granted a writ of error, dismissed it because the application in its Grounds of Jurisdiction on the subject of conflicts of decisions was not in accordance with the rules. Subsequently, on motion far rehearing, it observed that the application had been filed before the rules went into effect but granted a motion to amend which was filed after their effective date, saying in support of its action: "An examination of Rule 481, supra, will disclose that it provides: ‘The application, ... may be amended at any time when justice requires and upon such reasonable terms as the Court may prescribe...' Rule 504, supra, provides: 'The Supreme Court will not ... 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,...' Clearly these two rules authorize this court to grant one who prosecutes a writ of error to this court the right to amend his application, where it is defective either as to form or substance. Such being the case, an application which is defective, in that it fails to properly state grounds of jurisdiction under Section 1 of Article 1821, R.C.S., or Subdivision (b) of Rule 469, can be amended in this court at any time when, in the opinion of the court, justice so requires. Furthermore, we think the right to amend maybe granted even though the original application for writ of error was filed before the effective date of Rules 481 and 504, supra. This holding in no way violates Rule 814, supra, defining the effective date of our present Texas Rules of Civil Procedure. We will therefore order that the amended application for writ of error be filed, and will now consider this case on such amended application."

See also Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944), in which the same court refused to consider a point of error which was contained in neither the motion for rehearing nor the application. The court, however, took care to add: "It would serve no purpose in this instance to permit the application for writ of error to be amended under Rule 504 because the point was not assigned in the motion for rehearing in the Court of Civil Appeals."

These decisions, and the rules upon which they are based very clearly indicate, we think, that a proper practice on behalf of a party whose appellate contentions have not been considered an account of fault in briefing may and, when he actually has a meritorious contention, should be motion to amend.

7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).