Shanks v. Carroll
| Decision Date | 01 January 1878 |
| Citation | 50 Tex. 17 |
| Parties | R. E. SHANKS v. J. B. CARROLL. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Cherokee. Motion to dismiss. The facts are sufficiently given in the opinion.Priest & Whitman, for appellee and for motion.
H. M. Whitaker and Wilson & Bonner, for appellant.
The appeal in this case was perfected April 6, 1878, and it was the duty of appellant to have filed at the time this was done an assignment of errors in the District Court when the judgment was entered, and, ten days before the first day of the assignment of this court to which the case was returnable, she should also have filed in the District Court a copy of her brief. (Dist. Ct., R. 97, 100.) She has complied, however, with neither of these requirements. The assignment of errors was not filed until the 20th of July, and the brief but five, instead of ten, days before the time for filing the record in this court.
A failure to observe and comply with the rules prescribed by this court regulating the manner of bringing cases before it, is a valid and sufficient ground, in the discretion of the court, for the dismissal of an appeal or writ of error, unless good cause is shown why this is not done. It is not to be inferred, however, that the court must in all cases sustain motions to dismiss upon a mere failure to comply with the strict letter of this rule; but the court, in acting on such motion, may unquestionably “give such direction to the case as will cause the least inconvenience or damage from such failure, as far as practicable.” (Sup. Ct., R. 39; Dist. Ct., R. 100.)
To determine how this may be done, we must consider the object and purpose which the court had in view in requiring the assignment of errors and copy of briefs to be filed in the time and manner prescribed. Evidently the leading purpose was to facilitate and more effectually aid attorneys to represent their cases in this court without appearing before it in person, if they did not desire to do so, as was evidently the purpose of the Legislature when it required the assignment of errors on which the case was to be heard and determined by this court to be filed in the District Court. To do this, it is evidently necessary for appellee or defendant in error to see the assignments of error and brief which, by the rules of the court, he is called upon to answer, (Sup. Ct., R. 40,) a sufficient length of time before the call of the case in this court, to enable him to properly reply to it. Experience had also shown that the filing of the assignment of errors was often delayed until the last moment at which it could be done. This frequently resulted in delaying the preparation of the transcript by the clerk, delayed its filing in this court, embarrassed appellees in the preparation of their briefs and arguments, and retarded the court in the dispatch of business. It also led, as it is believed, to a looser and more indefinite character of assignments than was contemplated by the statute, than if made when the appeal or writ of error is first perfected and the grounds of objection to the judgment are fresh in the minds of counsel by whom the assignment is prepared.
There was certainly a considerable degree of negligence manifested by appellant in delaying to file her assignment of errors from April 6 to July 20, for which no excuse whatever is attempted to be made. But, at the same time, I cannot see that any essential damage or serious inconvenience has resulted to appellee from this delay, and “a good cause” for the failure to file a brief within the time prescribed by the rule has, as we think, been shown by appellant. If, therefore, such a brief as would reasonably enable us to dispose of the case as contemplated by the rules had been subsequently filed, (Dist. Ct., R. 100,) I think the court might properly dispose of this motion without an absolute dismissal of the appeal. But the supposed brief filed by appellant so obviously fails, in every essential particular, to comply with the rules, that it would be, in my opinion, an absolute disregard of both their letter and spirit to recognize or treat it as a brief in the case.
It is a fundamental requirement, that the brief upon which a cause is to be submitted to this court, after the general and succinct statement of the nature and result of the suit, (not a particular and detailed account of the entire action,) which is intended as a mere introduction to the consideration of the questions to be decided, must exhibit, in the shape of a separate proposition, tersely and distinctly, each point embraced in each assignment of error taken in the case. The rule is by no means, however, to be understood as importing that the “point” to be “stated in the shape of a proposition to be maintained,” should be the assertion or affirmation of a principle or rule of law, or some matter of fact tending to show that the error assigned is well taken. But is the propounding or affirming of some matter or thing done or refused to be done in the court below embraced in the particular assignment of error under which the “proposition” is made, for which the judgment should be reversed? Then, under the point thus presented as a proposition for the reversal of the judgment, there must be...
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Watson v. Godwin
...of our present Rules of Civil Procedure, when propositions were required instead of points, the Supreme Court of Texas in Shanks v. Carroll, 50 Tex. 17, 20 'The brief contemplated and required by the rules should, in short, embrace nothing but the propositions--set forth clearly, distinctly......
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Lang v. Harwood
...Procedure 418. All that is required is that the proposition set out the point to be decided or reason for reversing the case. In Shanks v. Carroll, 50 Tex. 17, it was said that in each should be propounded or affirmed some matter or thing done or refused to be done in the court below, embra......
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Small v. Johnson County Savings Bank
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McClanahan v. Cook, 7593
...of our present Rules of Civil Procedure, when propositions were required instead of points the Supreme Court of Texas in Shanks v. Carroll, 50 Tex. 17, 20 'The brief contemplated and required by the rules should, in short, embrace nothing but the propositions--set forth clearly, distinctly,......