AGREEMENTS OF COUNSEL. 46. All agreements of parties or their counsel relating either to the merits or conduct of the case in the court, or in reference to a waiver of any of the requirements prescribed by the rules, looking to the proper preparation of an appeal or writ of error for a submission, shall be in writing, signed by the parties or their counsel, and filed with the transcript or be contained in it, and, to the extent that such agreement may vary the regular order of proceeding, shall be subject to such crders of the court as may be necessary to secure a proper preparation for a submission of the case. ARGUMENTS OF COUNSEL. 47. When the case is properly prepared for submission, any party who has filed briefs in accordance with the rules prescribed therefor may, upon the call of the case for submission, submit an argument to the court, either oral or plainly written or printed, which, if written or printed, may be left on file with the transcript, copies of which need not be furnished unless printed. 48. The arguments must be upon the disputed points, whether of law or fact, in support of the propositions relied on, on one side, and objections and counter propositions on the other, and it must be confined to them, avoiding any reference or comment upon positions taken in the trial court, or to other extraneous matters not involved in or pertaining to that which is found in the record. 49. In referring to statutes, that part directly bearing upon or relevant to the position, should be read at the bar, or stated in the written or printed arguments, and in citing elementary books or decisions of courts, the principle should be stated, or so much should be read or stated as bears directly on or tends to maintain the proposition for which it is cited in the brief. 50. After the case has been presented to the court by such explanation as may be necessary, each side may be allowed an hour in argument at the bar, with twenty minutes more in conclusion by the appellant; and, after being so presented, if the magnitude or importance of the case or the difficulty of the questions seem to require it, a longer time may be allowed. Not more than two counsel on each side will be heard, except upon leave of the court. the record, and to the laws or authorities cited in the argument. 53. Should it be apparent, during the progress of the trial, or afterwards, that the case has not been properly prepared, as shown in the transcript, or properly presented in the brief or briefs, or that the law and authorities have not been properly cited, which will enable the court to decide the case, it may decline to receive the submission, or, if received, may set it aside and make such orders as may be necessary to secure a more satisfactory submission of the case; or should it appear to the court after the submission of the cause, that the statement of facts has been prepared in violation of the rules, the court may require the plaintiff in error or appellant to furnish four printed copies of such statement of facts, and upon his failure to do so may disregard it. If the violation of the rule be flagrant, the court may disregard the statement of facts altogether, unless counsel for the appellant or plaintiff in error shall make it appear by affidavit or otherwise, that he prepared a statement giving what, in his opinion, he deemed a fair presentation of the evidence, prepared in accordance with the rules, and that he was unable to get it agreed to or approved. But should counsel for appellant or plaintiff in error show that he has used due diligence to have a proper statement of facts signed and approved, and that the statement of facts as prepared is the result of the fault of the counsel for the opposite party, such as his failure or refusal to agree to a proper statement presented to him, the costs of printing the statement, if ordered, shall be taxed against the appellee, or defendant in error, as the case may be. 53a. If after the submission of the cause the court find that the transcript is not prepared as required by the rules, and that it contains matter which should not have been incorporated therein, the court may in their discretion decline to proceed further with the case, until the appellant or plaintiff in error presents a copy of the transcript from which all foreign matters have been omitted, and the court may in addition thereto, require that such copy shall be printed, and in case of the failure of such party to comply with the court's order within a reasonable time, to be specified in such order, the case shall be dismissed. 54. When a case has been properly prepared for submission, and a satisfactory oral argument has been made, the court will 51. If counsel for but one party has filed promptly announce its judgment, if practicabriefs, an argument by him may be allowed, ble, at the next succeeding session of the conformably to the preceding rules, as near-court, and, when deemed necessary, deliver a ly as practicable, under the direction of the written opinion, if not then, at some other court. time during the term of the court. 52. Counsel who argue a case at the bar will be expected to be able to answer questions propounded by the members of the court, relating to the matters contained in CUSTODY OF TRANSCRIPT. 55. Neither the transcript nor any of the papers in a case shall be withdrawn from the custody of the clerk, nor taken from his office or the court room without a receipt left therefor. APPEALS. 62. In all cases in which appeals or writs of error are dismissed, the appellant, or party filing the transcript, without further leave 56. Cases, while under submission, either of the court, shall have the right to withon the merits of the appeal or on motion, arenal papers belonging to an adverse party, in draw the transcript, unless it contains origino longer under the control of the attorneys; which event leave of court shall be had beand, while so under submission, the clerk will not let the transcript of such cases go fore such original papers are withdrawn. out of his office, except on the order of one REHEARING IN THE COURTS OF CIVIL of the justices of the court. While not under submission, either before submission or after decision, the parties or their attorneys may, by complying with rules 55 and 60, obtain possession of the transcript; provided, however, that when a case has been decided upon the merits of the appeal, no one, except the losing party or his attorney, shall be allowed to take the transcript out of the clerk's office until after said party has filed bis motion for a rehearing, or until after the time for filing such motion has expired. 57. Original papers sent up with the transcript by order of the trial court for the inspection of the appellate court will be retained in the office, and will not be allowed to go out of the custody of the clerk, except by order of one of the justices of the court, which order must be filed with the papers of the cause. 58. The clerk shall furnish the parties and counsel with an opportunity, when reasonably applied to for that purpose, to inspect the records, judgments, papers, opinions, books and dockets in his office in which they may be interested; but he shall not be required to permit copies thereof to be taken without his consent. He shall upon tender of reasonable compensation give certified copies of the records of his office. 59. The clerk shall be responsible for every transcript or other paper, in a cause, that is missing from his office, unless he can produce the receipt of an attorney for the same, or otherwise show, by satisfactory evidence, that some one took it from his custody, or from the court room, without his consent, or that said transcript had passed into the hands of one of the justices of the court, and had not been returned to his custody. Co. No attorney shall take or suffer to be taken, any transcript or other paper for which he has receipted out of the reach of the court so that it can not be produced in court or in the clerk's office when it is needed.. 61. The reporter shall have access to the minutes and judgments of the court, and shall have custody of the transcripts, briefs and opinions so long as may be necessary to discharge his duties as reporter. 63. Motions for rehearing shall be made and conducted strictly in accordance with the statute, which describes the manner of this proceeding. 64. Where a court of civil appeals adjourns for the term within less than fifteen days after the rendition of judgment, the issuance of the mandate shall, unless otherwise ordered, be withheld until the expiration of said period; and if, within that period, an application for rehearing shall be presented to the clerk of the court at that place, the issuance of mandate shall be further withheld to await the action of the court on said application. 65. Upon the rendering of the judgment in the court of civil appeals, as well as upon the making of an order overruling the motion for a rehearing, the clerk shall imme diately give notice by postal card to the attorneys of the respective parties of the disposition made of the cause or of the motion, as the case may be, for which service he shall tax the usual fee as a part of the costs in the case. But the mailing of such notices shall not relieve the parties of the responsibility of taking notice of the disposition of the cause or motion, and the fail ure to receive a notice so mailed shall be no excuse for delay in taking such future action as may be desired in reference to the case within the time prescribed by the statutes and rules. 66. Upon the presentation to him of an application for a writ of error, the clerk of the court of civil appeals shall withhold the mandate until properly advised of the disposition of the case by the supreme court. 67. Whenever a court of civil appeals shall decide any question which may come before it for determination and shall deliver a writ ten opinion thereon, and shall, upon a motion for a rehearing or upon their own motion, certify such question for the decision of the supreme court, the original opinion or a copy thereof, as well as a copy of the briefs of counsel on file in such court, shall accompany the certificate sent up to the court. If the original opinion be sent up, it shall be the duty of the clerk, when he sends down the answer to the question, to accompany the same with such original opinion. Rules for the Court of Criminal Appeals. 1. The clerks of the court of criminal appeals shall be governed by the rules applicable to the clerks of the court of civil appeals, except where a different rule may be prescribed by statute. 2. The rules governing motions, arguments of counsel and applications for certiorari to complete the record as prescribed for the courts of civil appeals shall apply to the court of criminal appeals. Rules for the District and County Courts. PLEADINGS. 1. The pleadings in the district and county courts shall, as prescribed by statute, be by petition and answer. 2. Pleadings, with the exception of those presenting issues of law, must be a statement of facts, in contradistinction to a statement of evidence, of legal conclusions, and of arguments. Facts are adequately represented by terms and modes of expression wrought out by long judicial experience, perpetuated in books of forms, in law and equity, which, though not authoritatively requisite, may generally be adopted as safe guides in pleadings. In case of a violation of this rule, to such an extent as to produce confusion, uncertainty and unnecessary length in pleading, the court may require the matter set up to be repealed, so as to exclude the superfluous parts of it from the record. THE PETITION. be numbered, so that an issue may be formed on each one by the answer. PLAINTIFF'S SUPPLEMENTAL PETI TION. 5. The plaintiff's supplemental petitions may contain exceptions, general denials and the allegations of new facts not before alleged by him, in reply to those which have been alleged by the defendant. THE ANSWER. 6. The answer of defendant shall consist of an original answer, and such supplemental answers as may be necessary, in the course of pleading by the parties to the suit, to enable the defendant to state all of the exceptions and facts, presenting his defense, as contained in his original answer, or his cross action, if one be set up in the original answer, and such other facts as may be required to rebut the facts that may be stated in the original and supplemental petitions as pleaded by the plaintiff. The original an 3. The petition of plaintiff shall consist of an original petition, and such supplemental petitions as may be necessary in the course swer and the supplemental answers shall be of pleading by the parties to the suit, to en- indorsed, so as to show their respective poable the plaintiff to state all the facts pre-sitions in the process of pleading, as "origisenting his cause of action, and such other nal answer," "defendant's first supplemental facts as may be required to rebut the facts answer," "defendant's second supplemental that may be set up in the original and sup-answer," and so on, to be successively numplemental answers, as pleaded by the de-bered, named and indorsed. fendant. The original petition and the supplemental petitions shall be indorsed, so as to show their respective positions in the process of pleading, as "original petition," "plaintiff's first supplemental petition," "plaintiff's second supplemental petition," and so on, to be successively numbered, named, and indorsed. ORIGINAL PETITION. ORIGINAL ANSWER. 7. The original answer may consist of pleas to the jurisdiction, in abatement, of privilege, or any other dilatory pleas; of exceptions, general and special; of general denial, and any other facts in defense by way of avoidance or estoppel, the same being pleaded in the due order of pleading, as required by statute; and it may present a cross 4. The plaintiff, in the original petition, in action, which to that extent will place deaddition to the names and residences of the fendant in the attitude of a plaintiff. Facts parties and the relief sought, may state all in avoidance and estoppel may be stated to of his facts, so as to present together differ-gether, or in several special pleas, each preent combinations of facts, amounting to a senting a distinct defense, and numbered so as to admit of separate issues to be formed cause or causes of action, as has been the on them. usual practice, or he may state the cause or causes of action in several different counts, each within itself presenting a combination of facts, specifically amounting to a single cause of action, which, when so drawn, shall may contain exceptions, general denial, and SUPPLEMENTAL ANSWERS. 8. The defendant's supplemental answers the allegations of new facts, not before al- | stituted shall no longer be regarded as a leged by him, in reply to that which has part of the pleading in the record of the been alleged by the plaintiff. cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation. 9. The original petition, first supplemental petition, second supplemental petition, and every other, shall each be contained in one instrument of writing, and so with the original answer and each of the supplemental answers. 10. Each supplemental petition or answer, made by either party, shall be a response to the last preceding pleading by the other party, and shall not repeat the facts formerly pleaded further than is necessary as an introduction to that which is stated in the pleading then being drawn up. These instruments, to wit, the original petition and its several supplements, and the original answer and its several supplements, shall, respectively, constitute separate and distinct parts of the pleadings of each party; and the position and identity, by number and name, with the indorsement of each instrument, shall be preserved throughout the pleadings of either party. 11. Each party who files a supplement of any number (as first, second, third and so on) shall give notice thereof by asking leave of the court, and filing the same amongst the papers of the cause, with the appropriate indorsement thereon, indicating its number and name. AMENDMENT. 15. When either party may have occasion to plead new facts, additional to those formerly pleaded by him, which constitute an additional cause of action or defense permissible in the suit, he shall present it as an amendment to the original petition, or original answer (unless it is in its nature a response to some pleading of the opposite party), by substitution, with the proper number, name and indorsement, in the same manner as other amendments. 16. When either supplement or amendment made to pleading is of such character, and is presented at such time as to take the opposite party by surprise (to be judged of by the court), it shall be cause for imposing the cost of the term upon, and charging the continuance of the cause (both or either) to the party causing the surprise, if the other party demand it, and shall make a satisfactory showing, or if it otherwise be apparent, that he is not ready for trial on account of said supplement or amendment being allowed to be filed by the court. EXCEPTIONS TO PLEADINGS. 17. General exceptions shall point out the particular instrument in the pleadings, to wit, the original petition or answer, or the respective supplements to either; and in passing upon such general exception every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency. 12. An amendment may be made by either party, upon leave of the court for that purpose, or in vacation, as prescribed by statute; the object of an amendment, as contradistinguished from a supplemental petition or answer, being to add something to, or withdraw something from, that which has been previously pleaded, so as to perfect that which is or may be deficient, or to correct that which has been incorrectly 18. A special exception shall not only stated by the party making the amend-point out the particular pleading excepted ment. to, but it shall also point out intelligibly the obscurity, inconsistency, duplicity, generality or other insufficiency in the allegations in the pleading objected to. The general expression that it is vague, uncertain, and the like, alone, shall be regarded as no more than a general exception. EXHIBITS IN PLEADING. 13. The party amending shall point out the instrument, with its date, sought to be amended, as "original petition,' or "plaintiff's first supplemental petition," or others filed by the plaintiff, or as "original answer," or "defendant's first supplemental answer" or others filed by the defendant, and amend such instrument by preparing and filing a substitute therefor, entire and 19. Notes, accounts, bonds, mortgages, complete in itself, to be styled and indorsed, records, and all other written instruments, "amended original petition," or "amended constituting, in whole or in part, the cause first supplemental petition," or "amended of action sued on, or the matter set up in original answer," or "amended first supple-defense, may be made a part of the pleadmental answer," and so on, accordingly as ings by copies thereof, or the originals, besaid instruments of pleading are designated ing attached and referred to as such, in aid and explanation of the allegations in the 14. Unless the substituted instrument petition or answer made in reference to shall be set aside on exceptions for a de- said instruments, but will not thereby reparture in pleading, or on some other lieve the pleader from making the proper ground, the instrument for which it is sub-allegations of which said exhibits may be in rules 3 and 6. the evidence, in whole or in part. No other | motions shall be first called and disposed of instrument of writing, such as a deed, will, before the main issue on the merits is tried. document, record of court, or agreement, ITS. 25. All motions which go to the merits of the case, and all exceptions, general and special, which relate to the substance or to the form of the pleadings, shall be decided at the first term of the court, when the case is called in the regular order for trial on the docket, if reached, whether there be an announcement on the facts or not, unless passed by agreement of parties with the consent of the court. which is not sued on as a cause of action MOTIONS AND EXCEPTIONS TO MERby plaintiff, or set up as matter relied on in defense by defendant, but is designed to be used only as evidence of some fact that is alleged, shall be made an exhibit in the pleading; and when it shall be so attempted, by attaching such instrument and referring to it as such, the court will, of its own motion, or at the instance of a party, cause the instrument to be detached from the pleading, and adjudge it to constitute no part thereof, by an order of court entered of record, at the cost of the party violating this rule, so as to prevent the pleadings from being incumbered with that which is or may be only the evidence in the case. 20. The office of a general denial by the defendant is to throw the burden of proof, as to the allegation denied, on the plaintiff. The defendant can not be permitted under this plea to introduce special matters in avoidance or estoppel, in evidence for his defense. And the same rule prevails when it is filed by plaintiff to facts in the cross action or answer of defendant. MOTIONS. 21. The clerk shall keep a motion docket in which all motions, when filed, shall be placed, with the names of the parties and counsel, with the date of filing and its number and the number of the case, which filing shall be considered notice of said motion before the continuance or final disposition of the case for the term, except where it is otherwise provided for by statute. 22. The court will set apart a particular day each week of the term, when the motions previously made, in which proper notice has been given, shall be determined, if urged, unless for good cause they are postponed to a day during the term, or continued by consent to the next term. 23. When notice shall be given of objections to the form or manner of taking and returning depositions, either party may require it to be put on the motion docket and tried as other motions: provided, if not tried sooner, it shall be decided before either party shall be required to announce readi ness for trial on the facts. CALL FOR TRIAL. 26. When the case is called for trial, the exceptions, if any remain undisposed of, shall be presented for determination, and shall then be decided before proceeding to the trial of the case on the facts, and if not presented, they shall be adjudged by the court to have been waived, and shall be so entered on the minutes of the court, the cost of filing to be taxed against the party filing them, and they shall constitute no part of the final record, unless some question be raised upon the action of the court in reference to them, and they are presented in a bill of exceptions. 27. When the exceptions have been presented and decided, leave may be granted to either or both parties to file an amendment in one instrument of writing separate from those which had been previously filed by each, which shall close the pleadings in the case to be then determined by the court, so as to decide all the questions of sufficiency arising upon them. In making this amend ment, the party shall refer distinctly to such instrument as he desires to amend, by name and number, as in the other amendments, without repleading the whole of it, but shall succinctly state such additional facts to be added thereto as he may desire, and this amendment shall be styled and indorsed, "plaintiff's" or "defendant's trial amendment"; but if the case should not be then tried, the party or parties shall replead, as in other cases of amendment. 28. When the questions of law, if any, have been determined by the court, the judge may, before proceeding to trial, by the aid of the counsel, have the pleadings that have been held sufficient, or have not been ex DILATORY PLEAS, MOTIONS AND EX- cepted to, read over, if deemed necessary, CEPTIONS, WHICH DO NOT GO TO THE MERITS OF THE CAUSE. 24. All dilatory pleas, and all motions and exceptions relating to a suit pending, which do not go to the merits of the case, shall be tried at the first term to which the attention of the court shall be called to the same, unless passed by agreement of parties with the consent of the court; and all such pleas and and make a brief memorandum of the facts stated, or issue presented in the pleadings, and may read them out before the trial commences, so as to inform the parties of the view which is entertained by the judge of the matters of fact in issue as presented by their pleadings. 29. The court, when deemed necessary in any case, may order a repleader on the part |