Citation Numbers: 430 S.W.2d 652
Judges: Clay
Filed Date: 6/28/1968
Status: Precedential
Modified Date: 10/1/2021
The importance of the procedural question presented has impelled us to write a brief opinion explaining our order overruling appellees’ motion to dismiss an appeal.
Appellants originally designated as the record on appeal under CR 75.01 “the complete record”,
Appellees have moved to dismiss the appeal on the ground that the amended designation called for a partial record and appellants failed to serve with such designation a “statement of the points on which he intends to rely on the appeal”, as required by CR 75.04.
We assume these discovery depositions were filed as directed by CR 30.06(1), but they were not used in a hearing or the trial. The narrow question is whether the record on appeal is “complete” without them. It is.
CR 75.01 directs a party taking an appeal to designate three things: (1) the record, (2) the proceedings, and (3) the evidence. A definition of these component parts of a record on appeal may be found in Middleton v. Hartford Accident & Indemnity Co., 5 Cir., 119 F.2d 721. Depositions, though filed, are not technically- a part of the clerk’s record. Williams v. Norris, 12 Wheat. 117, 25 U.S. 117, 6 L.Ed. 571; Tappan v. Beardsley, 10 Wall. 427, 77 U.S. 427, 19 L.Ed. 974. Depositions used at a trial or hearing obviously fall in the category of “evidence”. Discovery depositions not so used play no part in the proceedings and could play no part on appeal. It may be noted that CR 75.07(3), which directs the manner of preparation of the record on appeal by the clerk, refers to “a deposition used in the trial”. The import of that language is that no one would designate a nonused deposition.
CR 75.04 requires a statement of points only if the appellant fails to desig
The motion to dismiss is overruled.
. This is commonly used terminology encompassing the clerk’s record, the record of proceedings, and all of the evidence.