Completed Rules Urge Liberal Interpretation by Roy W. Mcdonald

404 TEXAS BAR JOURN AL Completed 1\ ules Urge Liberal Interpretation By ROY W. McDONALD, Reporter Supreme Court Advisory Committee Among the seventeen men gathered many that are new and yet others whi::h around the long table there was an ob- come from the Federal Rules. Every Fed- vious sense of gratification and relief. eral Rule has been carefully studied and Outside, the mid-August heat was broken its possible application to our procedural by a Texas thundershower, but in the system has been considered. Of the eighty- air-conditioned Texas Hotel at Fort Worth six Federal Rules, thirty-five wil be found the discussion raged so constantly that wholly or partly adopted in the recom- the conferees did not hear the thunder. mendations of the committee. The advisory committee appointed by the Appellate procedure proved a diffcu~t Supreme Court to assist it in the task of subject, and required most of the time of preparing rules of procedure for civil the group at three separate meetings, one actions in Texas, to become effective Sep- early in July at Fort Worth, another late tember 1, 1941, was holding its final pol- in the same month at Austin, and the icy-fixing session. Neither storm nor poli- final meeting in Fort Worth. The resu:t tics nor personal fatigue could interrupt of these deliberations wil be the recom- its drive to finish the job to which it had mendation of a system which embraces been assigned dmost exactly seven months much that is good from the Federal Rules before. while adapting it to the basic outlines of Let the re.cords show the work that this our present State systEm. group of lawyers has done. Excluding the The objective pursued in the suggestions time which has been spent in sub-commit- has been the simplification of the re::ord tee meetings and in offce study of pro- on appeal and the prevention of reversals posed amendments to the rules, the mem- upon unsubstantial grounds. To this end bers of the committee have spent one perhaps the most important provisions working day out of every nine since J an- have been these which provide for ex- uary in conference concerning these rules. tremely liberal amendment privileges in The sessions of the committee as a whole the appellate courts. N at only the briefs, have consumed twenty-one days. To the but the appeal bond, the transcript. the professors on the committee this has not statement of facts, and even the trial been a serious sacrifice, and as one of the pleadings may be amended while the case professors I waive for them any credit. is upon appeal, provided that thereby the But to the practicing lawyers who have ends of justice wil be furthered. Parties thus given freely virtually one month of may be dropped or added in the appellate their time to this work I claim the privi- court where this may cure an error of lege of expressing the appreciation of the misjoinder or non-joinder "without detri- Bar of Texas. ment to the substantial rights of any of With the meeting at Fort Worth August the parties." It is recommended that there be no reversal or dismissal for want of 13, 14, and 15, the committee completed Its study of appellate procedure and of form without allowing a reasonable time the rules which it wil recommend to the to correct or amend such irregularities. Supreme Court. As finally drafted, there Appeal, under the suggestions of the wil be some eight hundred rules. Many committee, wil be perfected by notice of of these wil be statutes which have been appeal, rather than by notice and cost carried forward; others wil be present bond as is now required. Cost bond wil of rules of court which have been adopted course be necessary, but not as a step in without modification. But there wil be thè perfection of the appeaL. Supersedeas TEXAS BAR JOURN AL 405 bonds wil, if the recommendations are appellant's liabilty under the family pur- adopted, be for the amount of the judg- pose doctrine." ment, interest, costs, and damages, rather Obviously, such points are not "proposi- than for double the amount, and specific tions" as now understood, and the tech- provision wil be made for superseding nical arguments about whether particular the judgment as to specified property propositions are suffcient to require con- without superseding the whole of the sideration should be eliminated. judgment where the suit is for the re- A further simplification which wil covery of or foreclosure upon real or per- have far-reaching effect upon the forms sonal property. of trial is the recommended adoption of The briefing rules wil not seem strange Federal Rule 46, which eliminates the to attorneys who have properly construed necessity of formally noting an exception the present practice. Two p r i n c i p a i to the rulings of the trial court which are changes have been recommended. One is made over the objection of a party. that the assignments of error need not The elaboration of the changes which be repeated in the brief. The other is the have been suggested in appellate pro- elimination of formal propositions, and cedure could be continued beyond the per- the substitution therefor of a "statement missible bounds of this brief report, but of the points upon which the appeal is they would be fragmentary in any event, predicted, separately numbered, in short and those which have been mentioned have form and without argument, and germane been suggested as examples of the type to one or more assignments of error. Such of work the committee has attempted, points wil be suffcient if they direct the rather than as an effort to note all the attention of the court to the error relied differences. upon and should ordinarily be so concisely stated that they may appear, separately The final report of the committee wil numbered, on a single page of the brief." be handed to the members of the Supreme Court in September. It wil consist of a As an ilustration of a "point" under mimeographed book of some 250 pages, this rule, the committee suggests, in a containing the body of the rules recom- note, the following: mended, the source of each one, and a "First point. The error of the court in notation of the changes made in the source refusing the charge upon the issue of materiaL. There wil be a parallel refer- Seventeen of the twenty-one members of the Supreme Court's advisory committee on rules of civil procedure attended the final meeting in Fort Worth. Seated, left to right, are Judge Allen Montgomery, Randolph L. Carter, Alonzo Wasson of the Dallas News, Allen Clark, J. B. Dooley, Judge Robert W. Stayton, Roy W. McDonald, Chairman Angus G. Wynne, Richard F. Burgess, Senator Olan R. Van Zandt, Marion N. Chrestman, Judge W. R. Chapman, Judge R. B. Levy, Winbourn Pearce, and Judge James W. McClendon. Standing are Dallas Scarborough, Wil R. Vinson, and Judge Ben H. Powell. 406 TEXAS BAR JOURNAL ence table, offering an easy bridge from "The proper objective of rules of civil any present statute or present Texas or procedure is to obtain a just, fair, equi- Federal rule to the recommended rule table, and impartial adjudication of the which either incorporates the present rights of litigants under established prin- statute or rule into the proposed system ciples of substantive law. To the end that or supersedes it. There wil be a complete this objective may be attained with as alphabetical index, which wil require great expedition and dispatch and at the more than twenty typewritten pages, fur- least expense both to the litigants and to nishing easy access to the rules on any the State as may be practical, these rules subject. shall be given a liberal construction." The size of the report wil indicate the (Suggested Rule Number One.) magnitude of the task which the advisory committee has completed in the last seven o months. Snap judgment upon the effective- ness of its work wil be dangerously in- La w Students Trail Doctors adequate. One who undertakes to evaluate the contribution of the Rule-making Pow- In Pre-License Exams er Act to the procedure of Texas wil have, Members of the legal profession II of necessity, to study carefully the changes Texas are trailng the medical group in which have been made. Not all of them the number of applicants passing pre- wil stand forth like red flags, challenging license examinations, a comparison of of- attention. Many forward steps wil be ficial statistics reveals. Although figures found to have been taken by the mere were chosen from 1935 to 1939, it must change of wording in a given rule or be remembered that during this five-year statute. It is the sincere hope of the com- period doctors were taking medical ex- mittee that its work wil be satisfactory aminations after years of strenuous prep- to the Supreme Court of Texas, the body aration, while the majority of lawyers who which, in the final analysis, must bear were best qualified to pass the bar exam- the responsibility for the rules which are inations were being exempt. announced. It is the further hope of the advisory Of the 357 medical students applying committee, often expressed in its meet- for examinations in 1935, 343 passed; 333 ings, that the history of the Field Code out of 358 passed in 1936; 437 out of 455 in New York in 1848 wil not be repeated in 1937; 365 out of 410 in 1938; and 391 in Texas in 1941 and the following years.

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