Gammel's Rules of the Courts of Texas Page: 43 of 70
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TEXAS COURT RULES.
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 amendment, 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 excepted to, read over, if deemed necessary, 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 of one or both of the parties, in order to make
their pleadings substantially conform to the rules.
30. These rules of pleading shall apply equally, so far as it may
be practicable to apply them, to interveners and to parties, when
more than one, who may plead separately.
Rule 27.-Trial Amendment. Held, that there is no rule more firmly
established by our decisions than that the allowance or refusal of a trial
amendment rests in the discretion of the trial judge, and unless an abuse
of discretion is shown, the ruling of the trial judge will not be disturbed
on appeal. Davis vs. Collins. 169 S. W. R., 1128; American Warehouse
Co. vs. Ray (C. A.), 150 S. W. R., 763.
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 burden of
proof of the whole case under the pleadings rests upon the defend
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Moffett, James William. Gammel's Rules of the Courts of Texas, book, 1922; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth5836/m1/43/: accessed June 28, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .