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Rule 5. Enlargement (1976)

TEXT

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act; but it may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing or the period for taking an appeal or writ of error from the trial court to any higher court or the period for application for writ of error in the Supreme Court, except as stated in the rules; provided, however, if a motion for new trial, motion for rehearing, any matter relating to taking an appeal or writ of error from the trial court to any higher court, or application for writ of error is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail one day or more before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time; provided, however, that a legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

Amended by order of July 22, 1975, eff. Jan. 1, 1976.

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. 50) Question: Does the plaintiff show good cause in not filing his controverting affidavit within the ten days period (Rules 86 and 87) by proving that defendant failed to furnish him with a copy of the plea of privilege (Rules 72 and 73)? The question is stated in another form: After filing suit can the plaintiff disregard it until he is furnished with a copy of the plea of privilege?

Answer: Rule 72 providing for delivery or mailing to the adverse party or, his attorney of record of any pleading, plea, or motion "which is not by law or by these rules required to be served upon the adverse party" is a wholesome rule and ought to be, and we think will be, readily complied with by the attorneys because of its mutual advantage to them. Nevertheless, the Committee thinks that the Rule is directory and failure to deliver to the plaintiff a copy of the plea of privilege does not dispense with the necessity of the plaintiff's filing a controverting plea; but it may constitute grounds for an extension of the time within which plaintiff should file the controverting plea. Although attorneys have a duty to keep in touch with the developments in their cases, the extent to which they should inspect the records is naturally affected to some extent by Rule 72 requiring the delivery to them by their adversaries of copies of all pleadings, pleas or motions filed in the case.

Under Rule 5, which permits the enlargement of the time within which a specified act is required or allowed to be done, and the liberal construction required by Rule 1 to be given to all the rules in order to adjudicate "the rights of litigants under established principles of substantive law," a wide discretion is vested in the courts in dealing with questions of the character raised in your inquiry. We are of opinion that the courts have the power, upon consideration of all the facts and circumstances, and in the interest of justice, to permit a controverting affidavit to be filed after the expiration of ten days from appearance day upon compliance by the plaintiff with the provisions of Rule 5. When requests for enlargement are applied for under this Rule each case, must necessarily be determined by the court upon its own facts in accordance with the right of the case.

Ordinarily, where the plaintiff and his attorney have no notice or knowledge of the fact that a plea of privilege has been filed, and the defendant has failed to deliver a copy thereof as required by Rule 72, we would be inclined to feel that this would constitute good cause under Rule 5 for granting of an extension of time for the filing of a controverting plea. This would not render nugatory and void that part of Rule 86 quoted in correspondent's letter, as the filing of a controverting plea would still be a prerequisite to the overruling of a proper plea of privilege. It would merely have a bearing upon the time within which the controverting plea could be filed.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 24 (1945).

(No. 59) Question: Under the Rule 169 of the Rules of Civil Procedure, assume that a party is delivered a proper request for admissions of fact and does not reply to the same within the time stipulated, and assume further that five days prior to the time that the party has to make his reply his attorney files a motion in the court papers for a ten day extension of time to file a reply and no other notice is given to the adverse party of the filing of such motion, and no action is taken on the motion at the time, and no other motion for an extension of time is made, would the court at the trial of the case over three months thereafter have any authority to permit such party to file a reply to the request for admissions?

Answer: We consider that the court would, under the circumstances at hand, have authority, in the exercise of its discretion, to permit the reply to be filed unless the motion were so worded as not to contemplate an extension at so late a time, and that it would likewise, of course, have the discretion to refuse such permission. Rule 169 gives such authority on motion and notice. Rule 21 requires the clerk on the filing of the motion to make the proper entries concerning it on the motion docket, and renders such filing and entry sufficient notice, since the motion is one in a pending suit. As these entries are to be made by the clerk, any failure to make them is the fault of the clerk. In the fact situation which is supposed in the question, the party demanding the admission has a clear remedy. It is to be expected that within the ten days allowed by Rule 169 he will have come into possession of a copy either of the sworn statement or else of the motion to enlarge the time for filing the sworn statement, because Rule 72 requires the transmission of a copy of any paper of that kind and Rule 73 puts the party in default of that duty in danger of having to pay for a certified copy. If at the end of the ten days' time the party demanding the admission receives no copy whatever, he very naturally should resort to the papers to ascertain whether any paper has been filed. If, instead of a sworn statement as required by Rule 169, he encounters a motion for enlargement of time, as is permitted by such. Rule, he may thereupon request the court to hear the motion, and he may persist in his request until it is heard. Since the efficacy of this whole proceeding is largely dependent upon its completion before the trial commences, it is, of course, to be hoped that the demandant would thus protect himself. The discretion of the court in such a case should be exercised to the end of requiring as prompt a filing of the sworn statement as the circumstances may justify.

It should be added that, in the event respondent's motion is ineffective on account of its wording, a second though more onerous motion could be urged and granted under Rule 169 and subdivision (b) of Rule 5.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 25 (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).