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Rule 67. Amendments to Conform to Issues Tried Without Objection
TEXT
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made by leave of court upon motion of any party at any time, even after judgment, but failure to amend shall not affect the result of the trial of these issues.
Source: Federal Rule 15(b). (First two sentences unchanged.)
Oct. 29, 1940, eff. Sept. 1, 1941.
AMENDMENTS
ADVISORY OPINIONS
(No. 27-a) Question: When a justice court case is appealed to the county court and the pleadings are reduced to writing under Rule 525, do the oral pleadings in the justice court go out of the case to the extent that they cannot be shown?
Answer: In the sense that the oral pleadings go out of the case for the purpose of trial and relief in the county court, we consider that the situation is one like that of amendment: The new pleading takes the place of the old and the old is no longer a part of the case. However, it may become important to show what the old pleadings were in connection with contentions under the statutes of limitation and with contentions that a new cause of action has been set up for the first time in the county court.
It should be added that while, therefore, the written pleadings in the county court are the pleadings upon which the case is tried, if the trial is upon certain proof that is variant from or has no support in the written pleadings, but no objection or the like is made to the variance or departure, Rule 67 applies and it will be as though there had been sufficient pleading. In this connection see also Rule 66 as to ready amendment if objection is made. Doubtless in a case of appeal from justice to county court the rules above cited would not go to the extent of allowing a new cause of action to be set up in the county court or recovered on in the county court; but with this qualification there should be little difficulty about variance or departure. And, of course, by the time of a special issue submission all pleadings relied upon in the submission would have to be in writing, under Rules 67, 277, and 279, unless the defect should be waived under Rule 274.
5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).
(No. 88) Question: Rule 67 reads "When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings ... provided that written pleadings, before the time of submission, shall be necessary to the submission of special issues, as is provided in Rules 277 and 279." Does this rule mean that it is necessarily reversible error to submit special issues when they have not been raised by the written pleadings as provided in the above rule and in Rules 277 and 279?
Answer: No. Rule 274 was amended at a later date than the date upon which the above requirements were promulgated. This later amendment reads "Any complaint as to an instruction, issue, definition or explanatory instruction on account of any defect, omission, or fault, in pleading, shall be deemed waived unless specifically included in the objections." This amendment is contained, it will be recalled, within a rule, which, regulates objections to the charge of the court. So that the opinion of the subcommittee is that issues, submitted, without written pleadings to support them will not be erroneous upon that ground unless objection upon, that ground is made.
6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).
(No. 89) Question: Where legal conclusions are used in a pleading, what do the rules contemplate as the proper treatment of them?
Answer: By Rules 45 and 69 the court omits, the requirement that allegations be of "facts" that had been contained in the parent statutes. In the first of these rules the court adds "that an allegation be … of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole."
In our opinion, therefore, allegations of conclusions of law should be treated as good pleading unless fair notice is not given by them and should even then be considered as sufficient unless objection on that ground is made to them. See Rules 67, 90 and 274.
6 Tex. B.J. 77 (1943) reprinted in 8 Tex. B.J. 33 (1945).
(No. 116) Question: In Bednarz v. State, 142 Tex. 138, 176 S.W. 2d 562 (1943), the judgment of the trial court which was largely in favor of defendant was affirmed, notwithstanding that the defendant filed no answer whatever, and the judgment of the Court of Civil Appeals, State v. Bednarz, 174 S.W.2d 743 (Tex. Civ. App.-San Antonio 1943), which reached a contrary result, was accordingly reversed. Does the decision of the Supreme Court make a written answer immaterial?
Answer: No. In any case where such an omission occurs, the plaintiff, if he so desires, may o n default day or thereafter until the time o f trial, claim and have a judgment by default, or he may call upon the court by proper procedure to require an answer to be filed and in this way avail himself of the acknowledged virtues of written pleading in preventing surprise and delineating issues. Rules 90, 91, 268, 274 and see Rule 66.
But if, as in the instant case and in many cases where the fact issues are not complicated, the plaintiff takes no such step but is content to try the matter without an answer, he may do so, and in that event he has no ground to complain. See Rule 67, which sources in Federal Rule 15 (b). That this principle in Texas long antedated the Federal Rules is shown by numerous decisions cited in the opinion in this Bednarz case.
It is contrary to the policy of this subcommittee to express opinions upon pending litigation. The case at hand is not in that class, however, as motion for rehearing has been overruled.
7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 43 (1945).