Rules for the courts of Texas: adopted by order of the Supreme Court at Tyler on the first day of December, A.D. 1877: together with amendments thereto at various times up to the close of the Austin term, A.D. 1890 Page: 31 of 64
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OF THE STATE OF TEXAS.
may be practicable to apply them, to intervenors and to parties,
when more than one, who may plead separately.
TRIAL OF THE CASE.
31. The plaintiff shall have the right to open and conclude,
both in adducing his evidence and in the argument, unless the
defendant, or all of the defendants, if there should be more than
one, shall, after the issues of fact are settled and before the trial
commences, admit that the plaintiff has a good cause of action as
set forth in the petition, except so far as it may be defeated, in
whole or in part, by the facts of the answer constituting a good
defense, which may be established on the trial; which admission
shall be entered of record, when the defendant, or the defendants,
if more than one, shall have the right to open and conclude in
adducing the evidence and'in the argument of the cause.
32. The court shall not be required to allow a case to go to trial
on the facts, when the pleadings on either or both sides are obviously
so defective as that a material issue or issues have not been
formed, upon the finding on which no legal judgment could be
rendered; and in such case the court shall call the attention of the
parties to such immaterial or defective issue or issues, so that the
time of the court may not be wasted in trying them. The party
in default may then waive his pleading thus found obviously defective,
which shall be noted on the minutes of the court, and
proceed with the case, should there be other material issue or issues,
or he may take the proper steps to amend his defective pleading,
under the rules prescribed for amendments, and upon such
reasonable terms as the court may impose.
33. A party who abandons any part of his cause of action or
defense, as contained in the pleadings, may have that fact entered
of record, so as to show that the matters therein were not tried,
and he shall be taxed with the cost incurred upon such pleading
so abandoned. He shall also be taxed with the cost incurred
upon pleading in support of which no evidence was offered, to be
determined by the court on motion at the term of the trial, and
COUNSEL AND ARGUMENTS.
34. Counsel for plaintiff or for defendant, when he holds the
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Morse, Charles S. Rules for the courts of Texas: adopted by order of the Supreme Court at Tyler on the first day of December, A.D. 1877: together with amendments thereto at various times up to the close of the Austin term, A.D. 1890, book, 1890; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth5830/m1/31/: accessed August 17, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .