The fact that the docket of the Supreme Court is overcrowded makes it imperative that applications for writs of error be as brief as possible. The attorneys are urged to co-operate with the Court in this respect, in order to reduce the work of the Court.
(a) Statement of the Case. The opinion of the Court of Civil Appeals will always be read before the application is considered; consequently the application should not contain matter that is found in the opinion of the Court of Civil Appeals. Ordinarily it should contain only a statement of the general nature of the suit, - for instance, whether it is a suit for damages, on a note, or in trespass to try title, and that the statement as contained in the opinion of the Court of Civil Appeals is correct, except in the particulars pointed out. Example: "This is a suit for damages for personal injuries growing out of an automobile collision. The opinion of the Court of Civil Appeals correctly states the nature and result of the suit, except in the following particulars: (If any.)” Such statement should seldom exceed one-half of a page. The details of the case should be reserved to be stated in connection with the assignments to which they are pertinent.
(b) Statement of Jurisdiction. Except in those eases in which the jurisdiction of the Court depends on a conflict of decisions under Subdivision 1 of Article 1819, the petition should merely state that the Supreme Court has jurisdiction under a particular subdivision of Article 1728. Example: "The Supreme Court has jurisdiction of this suit under Subdivision 1 of Revised Statutes, Article 1728." Where the case is one coming within the provisions of Subdivision 1 of Article 1819, and jurisdiction of the Supreme Court depends on a conflict of decisions, the conflict on the question of law should be clearly and plainly stated.
(c) Points of Error. The points of error relied upon, separately numbered, shall be stated in short form and without argument and be germane to some assignment of error in the motion for new trial in the trial court, or otherwise saved in the statement of points as authorized by the rules governing the record on appeal, and likewise assigned as error in the motion for rehearing in the Court of Civil Appeals. If the ruling complained of originated in the Court of Civil Appeals, it must also be assigned as error in the motion for rehearing in said court.
(d) Brief of the Argument. The brief of the argument presenting separately, or grouped if germane, the points of error relied upon for reversal, the argument to include such pertinent statements from the record as may be requisite, together with page references and such discussion of the authorities as is deemed necessary to make clear the points of error complained of. The opinion of the Court of Civil Appeals will be considered with the application, and statements therein, if accepted by counsel as correct, need not be repeated.
(e) Subject Index. The application shall contain at the front thereof a subject index with page references where the discussion of each point relied upon may be found and also a list of authorities alphabetically arranged, together with reference to the pages of the application where the same are cited.
(f) If any brief or application for writ of error is unnecessarily lengthy or not prepared in conformity with these rules, the court may require same to be redrawn.
Amended by order of March 31, 1941, eff. Sept. 1, 1941: Subdivisions (a) and (b) have been reworded so as to be clearer respecting purpose and practice..
(No. 131) Question: In San Antonio Joint Stock Bank v. Malcher, 164 S.W.2d 197, 199 (Tex. Civ. App.-San Antonio 1942), the Court of Civil Appeals held that points presented by appellant, but not briefed were waived. The decision was followed by Piedmont Fire Ins. Co. v. Ladin, 174 S.W.2d 991 (Tex. Civ. App.-Galveston 1943) and, during the present year, by Broussard v. L. Cartwright Realty Co., 179 S.W.2d 777 (Tex. Civ. App.-Amarillo 1944), and Orange Laundry Co. v. Stark, 179 S.W.2d 841 (Tex. Civ. App.-Amarillo 1944). Has appellant any remedy in a Case of this sort?
Answer: Yes. His most obvious remedy is, of course, to comply with the briefing rules when he prepares his brief.
We are of the opinion that he has another remedy; that is, a motion to amend. We beg to quote from a number of rules and cases in support of this answer.
Rule 422. The purpose of briefs being to acquaint the court with the points relied upon, the manner in which they arose, together with such argument of facts and law as will enable the court to decide the same, a substantial compliance with these rules will suffice in the interest of justice; but for a flagrant violation of the rules the court may require the case to be rebriefed.
Rule 431. Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe, and if the court shall strike or refuse to consider any part of a brief, the court shall on reasonable terms allow the same to be amended or supplemented.
Rule 437. 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, ... "
In Gillette Motor Transp. Co. v. Wichita Falls & S. Ry. Co., 170 S.W.2d 629 (Tex. Civ. App.-Fort Worth 1943), the Court decided that under the rules above quoted it could, as it did, "after submission of the cause, allow amendment of 'appellant's brief' in order to present points of error not presented in the original brief."
There are similar rules as to applications for writ of error and briefs in the Supreme Court, viz. Rules 469 subd. (f), 481, 491, and 504.
In Cochran v. Wool Growers Central Storage Co., 162 S.W.2d 941 (Tex. 1942), the Supreme Court, having previously granted a writ of error, dismissed it because the application in its Grounds of Jurisdiction on the subject of conflicts of decisions was not in accordance with the rules. Subsequently, on motion far rehearing, it observed that the application had been filed before the rules went into effect but granted a motion to amend which was filed after their effective date, saying in support of its action: "An examination of Rule 481, supra, will disclose that it provides: ‘The application, ... may be amended at any time when justice requires and upon such reasonable terms as the Court may prescribe...' Rule 504, supra, provides: 'The Supreme Court will not ... dismiss a writ of error 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,...' Clearly these two rules authorize this court to grant one who prosecutes a writ of error to this court the right to amend his application, where it is defective either as to form or substance. Such being the case, an application which is defective, in that it fails to properly state grounds of jurisdiction under Section 1 of Article 1821, R.C.S., or Subdivision (b) of Rule 469, can be amended in this court at any time when, in the opinion of the court, justice so requires. Furthermore, we think the right to amend maybe granted even though the original application for writ of error was filed before the effective date of Rules 481 and 504, supra. This holding in no way violates Rule 814, supra, defining the effective date of our present Texas Rules of Civil Procedure. We will therefore order that the amended application for writ of error be filed, and will now consider this case on such amended application."
See also Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944), in which the same court refused to consider a point of error which was contained in neither the motion for rehearing nor the application. The court, however, took care to add: "It would serve no purpose in this instance to permit the application for writ of error to be amended under Rule 504 because the point was not assigned in the motion for rehearing in the Court of Civil Appeals."
These decisions, and the rules upon which they are based very clearly indicate, we think, that a proper practice on behalf of a party whose appellate contentions have not been considered an account of fault in briefing may and, when he actually has a meritorious contention, should be motion to amend.
7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 49 (1945).