Wright v. Maddox
| Decision Date | 02 July 1926 |
| Docket Number | (No. 7026.) |
| Citation | 286 S.W. 607 |
| Parties | WRIGHT v. MADDOX. |
| Court | Texas Court of Appeals |
Suit between G. G. Wright and Annie Maddox and others. Wright brings error. Briefs of both appellant and appellee stricken out, and rebriefing required.
John W. Pope and J. Lee Zumwalt, both of Dallas, for plaintiff in error.
Miller & Godfrey, of Dallas, for defendants in error.
The parties will be designated appellant and appellee.
Appellee has objected to appellant's brief, on the ground that no assignments of error are copied therein. Appellant has filed a 21-page paper containing 32 assignments of error, and has moved that this paper be considered in connection with the brief. We might grant this motion but for the fact that upon examination of the brief we find it is not prepared in substantial compliance with the rules for briefing, and for that reason we have concluded to strike out the brief and require appellant to rebrief the case in accordance with the rules.
We will point out what we regard in appellant's brief as flagrant violations of the rules.
Appellant has filed a brief of 85 typewritten pages, which is constructed in the following manner: The first 8 pages are taken up with a statement of the nature and result of the suit. Pages 8 to 20 contain a list of what are denominated "Points and Propositions." The remainder of the brief takes up these propositions in order, and gives to each an argument, authorities, and statement from the record.
As stated above, the assignments of error are not copied anywhere in the brief.
Before taking up in detail the matters to which we think attention should be called, it may not be amiss to restate at the outset that the purpose of requiring briefs on appeal is twofold—to aid the appellate court in reaching a correct decision, and to enable the court to dispose of the cause with the least labor and consumption of time. Petroleum Co. v. Nearn, 45 Tex. Civ. App. 192, 100 S. W. 967. The rules for briefing are designed to effectuate this purpose. A technical compliance has never been required, except in the matter of copying the assignments relied upon in the brief. A substantial compliance with the rules has always been held to be sufficient where the brief effectuates the purposes for which it is required. Under the rules prior to September 1, 1921, the assignments of error were immediately followed by propositions and statements. Where assignments involved the same question of law, they were permitted to be grouped in order to avoid the necessity of repetition and cross-reference. This result, however, was often not attained, and the inconvenience arising from repetition and cross-reference was sought to be eliminated in the new rules effective September 1, 1921. While these new rules have had some criticism from the courts, it is pretty generally conceded that they are less technical and permit greater latitude in several respects than did the rules which they superseded. A comparison of the old and new rules, as well as a general history of the subject of briefing in Texas, is very ably presented by Judge Stayton in the December issue, 1924, Texas Law Review, which we commend to the bar for their careful study.
Rule 29 reads:
"The opening part of the brief for the appellant or plaintiff in error shall consist of a plain and succinct statement of the nature and result of the suit, not argumentative, but constituting a concise statement of the case."
The statement of the nature and result of suit in appellant's brief does not comply with this rule. The purpose of the rule is to present at the opening of the brief a statement which is clear, nonargumentative, and concise, giving to the court at the outset what the suit is about and how it resulted in the trial court. The rule is drawn in clear and simple language, and does not, we think, require explanation.
Rule 30 reads:
We copy from appellant's brief the first page immediately following the statement of the nature and result of suit:
Continuing for the next twelve pages, 32 "points" are presented in substantially the same language as those above quoted. Under each "point" are from 1 to 11 propositions, which are drawn in the same general language as those copied above.
The requirement for assignments of error is statutory, and they form the basis of review of the trial court's ruling in all matters except those which are fundamental. Except as to fundamental error, the filing of assignments of error is jurisdictional with the Court of Civil Appeals. Roberson v. Hughes (Tex. Com. App.) 231 S. W. 734.
The old rules required the assignments to be copied verbatim into the brief, and this requirement is carried into the new rules. Under both the old and the new rules, regardless of the change of language in this regard, it is held that assignments not so copied are waived. The purpose of this requirement, we think, is to present to the appellate court only the assignments upon which the appellant relies for reversal of the trial court's judgment.
The new rules, however, make the propositions or points the basis for the brief. The two words are synonymous. While each has a variety of meanings...
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