Barrister News, 1959 Summer, V. 7 No. 3

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Title

Barrister News, 1959 Summer, V. 7 No. 3

Subject

St. Mary's University School of Law

Description

The Broadened Scope of the 1957 Amendments to the Texas Discovery and Deposition Rules, Hickman Honored with Gavel, Faculty Adds Sierk, Fraternities, The Lawyer and His Profession, Silver Jubilee Coming Soon, ALSA Delegates Prepare for Miami Missions

Creator

St. Mary's University School of Law

Publisher

St. Mary's University School of Law San Antonio Texas, St. Mary's University School of Law, Sarita Kenedy Law Library

Date

1959

Contributor

Jack Hebdon, Edward V. Dylla, John M. Flatten Jr., Richard Wilson, Alfred Coco, Buddy Chastain, Lange Hoffman, Frank Y. Hill Jr., James Hope, Frank Flatten, Frank Southers, Jack Kelso, Bill Richards

Rights

NULL

Relation

Barrister News

Format

RFC3778

Language

English, en-US

Type

Text

Identifier

STMULAW_BarristerNews1959Summer

Coverage

1959

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Text

The Broadened Scope Of
The 19 57 Amendments To
The Texas Discovery And
Vol. VII, No. 3

Deposit ion Rules
By Jack Hebdon

St. Mary's University School of Law

San Antonio, Texas

HICKMAN HONORED WITH GAVEL

lid Hebdon, prominent San Antonio trial lawyer received his LL.B.

gree from The University of Texas Law School and was admitted
tbe State Bar of Texas in 1944. Presently he is a member of the
~~Antonio Bar Association, the State Bar of Texas, and the Amer'Cil~ Bar Association.
~r. Hebdon is a part-time Professor of Law at St. Mary's University,
d specializes in trial work as a partner in the firm of Eskridge,
wee, and Hebdon.

Since the Federal Rules of Ci vil Procedure were adopted in 19 3 8,
twenty-four states have made significant changes in their discovery
procedures, and eighteen states
have substantially adopted Federal
Rule 26, 35 Texas Law Review,
484. By the 1957 amendments to
the discovery and deposition rules
to the Texas Rules of Civil Procedure, the Supreme Court of Texas
has materially improved and expanded the Texas Discovery and
Deposition procedure. The purpose of this Article is to discuss
these new rules and to emphasize
the changes and how they are apJack Hebdon
plicable to our court procedure.
The first important change is
Ins.
Rule 167 in that the following language has been inserted:
·wan
Judi·
"* • • or order any party to permit entry upon designated
SW2c
land or other property in his possession or control for
Iaren
the purpose of inspecting, measuring, surveying or photo516:
graphing the property or any designated object or oper~at'l.
11enu
ation thereon which may be material to any matter involved in the action. The order shall specify the time,
place and manner of making the inspection, measurement or survey and taking the copies and photographs
and may prescribe such terms and conditions as are
just."
The source of this addition is Federal Rule 34. Before the
sage of the amendment the Supreme Court in Hastings Oil
vs. Texas
, 149 T. 416, 234 S.W. 2d 389
jjO) held that the trial court could order the entry upon and
pection of land and photographing thereon under Rule 737,
1 Equitable Bill of Discovery. However, the situation is now
6
rered by Rule 167, so that the inspection cari be secured by
pie motion for discovery. It will be noted that there must be
showing of good cause therefor, and proper notice must be
and, furthermore, the actions of the court are subject to
limitations of the kind provided in Rule 186b, which will
tcomm·ent:ed on later.

)RAT I ON

Procedure were adopted in
no effort was made to broaden the scope of the deposition
Depositions were designed for the purpose of disevidence and were not intended to be used as a disprocedure or for the purpose of going on "fishing expe" However, through practice and because of the fact
our pleadings could be amended mandatorily up to seven
before trial. The deposition practice had taken on many
aspects of a discovery procedure, but this was more by
consent between the attorneys than by any authority
ided in the rules.
186a, which was an addition by the 1957 amendments,
y adopt the first sentence from Federal Rule 26a, and
declares that the purpose of the deposition upon oral
IJlllnatJlon or written interrogatori~s shall be for the purpose
. , ,;rn••Prv, or for use as evidence in the action, or for both
The principals governing the scope of the examina.,~·:~wJ.ut:u by Rule 186a are summarized as follows:
Any person may be examined.
l. The examination may ·relate to any matter and the
rules on admissibility do not cover the scope of the
examination.
J. The examination may relate to facts bearing on the
claim of an adverse as well as an examining party.
t The examination need not be 1 i mite d to ultimate
facts, but may delve into evidential facts.
\. The examination need not be limited to matters exclusively within the knowledge or control of an adverse party. It may extend to matters of which the
examining party has personal knowledge.
!. At the examination, production of documents may
be required by a Subpoena for the Production of
Documentary Evidence.
(Cont'd on Page 3 Col. 1)

Chief Justice Hickman recipient of the Gavel Award with Justice Norvell

Graduate Is
District Judge
Marvin Blackburn, Jr., 1946
graduate of the St. Mary's University School of Law, has been
appointed Judge of the Second
38th Judicial District Court. The
Second 38th Judicial District is
composed of Bandera, Gillespie,
Kendall, Kerr and Kimble counties .
While Judge Black burn was
stationed at Dodd fie I d in San
Antonio, he attended San Antonio
College, and obtain e d his law
degree at St. Mary's University
Law School. Upon graduation from
St. Mary's, he entered private
practice in Junction, Texas, subsequently holding the position of
District Attorney of the Second
38th Judicial District . We congratulate Judge Blackburn on his
appointment.

DYLLA

ASSUMES POST
Senior student, Edward V. Dylla
has been appointed Editor in
Chief of the Barrister News. He
succeeds graduating senior Alois
Hohman.
Mr. Dylla, a native San Antonian
has served actively on the
Barrister News staff for four
semesters.

He has in turn appointed the
following members to theE ditorial
Board: John M. Flatten Jr., Business Editor; and Richard Wilson,
Photo Editor. "Other appointments
will be made when the Fall Semester begins," he said.
The new Editorial Board has
announced a policy to direct the
Barrister News potential toward
aiding St. Mary's future lawyers
in their fuller professional development and to devote the publication to the highest ideals of
the bench and the bar. They state,
that this can be accomplished by
the wholehearted cooperation and
participation of the student bar
and the organized bar. Outstanding articles and features on the
techanical and practical aspects
of the law are being planned for
future editions

Schoenbaum Speaks
At Rocky Mountain

Judge Blackburn

PfiiiiOnfR~
On 'June 29, be fore the Ft.
Worth Court of Civil Appeals, the
University of Texas and St.
Mary's University tangled in the
semi-finals of the State Junior
Bar Associations's annual Moot
Court Competition.
The case involved the rights
of a Trustee in Bankruptcy and
the rights of a Surety Company,
who had, in return for a general
assignment, given a performance
and payment bond to a construction
i:ompany who thereafter defaulted
on its construction contract and
subsequently
was
adjudicated
bankrupt. The Surety Company
thereafter paid the materialmen
of the construction company,
taking an assignment from such
materialmen who seemingly had
not perfected their liens . However,
the Trustee· in Bankruptcy under
orders of the Referee completed
the remainder of the construction
project, after which there remained $21,000 in the hands of
the owner of the project. Both the
Surety Company and the Trustee
sued the owner for these funds,
but by a Bill of Interpleader the
suits were consolidated. The Moot
tri :. l court and the Moot Court of

Mr. Stanley Schoenbaum, Adjunct Professor of Taxation, St.
Mary's Law School, recently spoke
before the Fifth Annual Rocky
Mountain Mineral Law Institute,
at the University of Utah, Salt
Lake City. Professor Schoenbaum
spoke on the "Significant Deve 1opments in the Treasury Regulations Governing Oil, Gas, and
other Minerals."

PlfBO

~IBIU~

Civil Appeals held for the Surety
Company.
The Trustee in Bankruptcy,
Petitioner in the Moot Supreme
Court of Texas, as sailed t'lie
validity of the assignment by the
construction company under the
rules of the Common Law engendered by a hiatus in the applicable
statute at the time of execution;
and claimed the assignment was
voidable under "The Strong-Arm
Clause" (Sec. 70c) of the Bankruptcy Act. The Re spondant,
Surety Company, attack e d the
Petitioner's allegations by merely
negating such propositions.
The Ft. Worth Court of Civil
Appeals, acting as the Moot
Supreme Court of Texas, rendered
judgment in favor of the Respondant, 2 to 1. The Petitioner,
Trustee in Bankruptcy, was represented by St. Mary's University
law students, Frank Y. Hill, Jr.;
Robert O'Donnell; and Frank R.
Southers and coached by Proffessor Orville Walker.
The Respondant, Surety Company, was represented by the
University of Texas Law students,
who defeated Southern Methodist
University in the finals, 3 to 2.

The Chief Justice of the Texas
Supreme Court and a prominent
San Antonio builder were honored
at the first Annual Law Day
Awards Banquet, sponsored by
the Barristers Club.
The event, held in the Gunter
ballroom, attracted 200 members
of the Legal profession.
The Chief Justice, John E.
Hickman, received the Gavel
Award, given annually to an outstanding member of the judiciary.
Accepting the honor, which recalled his 43 years of service to
the profession, Chief Justice
Hickman said:
"I take this gavel as a symbol
of comradeship between justices
and lawyers."
In his speech urging lawyers,
judges and students to help build
public esteem for their calling,
the high court justice sai_d:
"Honesty and objectivity are
the top qualities for begetting respect for the law.''
In his speech, real estate
developer E. J. Burke, Jr.,praised
St. Mary's Law School for keeping
pace with the r a pi d 1 y changing
world. Mr. Burke, who received
the St. Thomas More Award for
outstanding contributions to the
legal prof e s s ion, cited new
courses being added by St. Mary's
in its effort to meet the shifting
problems of the times.
"In a new world," said Mr.
Burke, "we must constantly update our social regulations."
"This is especially true,'' he
noted, "in Texas where growth
and change are rapid and plentiful."
Also honored at the banquet
was Dean Ernest Raba who was
given a standing ovation when he
accepted a plaque for 25 years of
legal achievement presented on
behalf of Delta Theta Phi by its
president, Robert G. Davis.
Other awards presented at the
meeting included:
James R. Norvell moot court
awards (wrist watches) to Frank
Y. Hill and Robert O'Donnell, by
the donor; first annual Domangue
Award for an outstanding paper on
workmen's compensation to Alfred
Coco, by the donor, Arthur A.
Domangue; Outstanding Graduate
(Cont'd on Page 2, Col. 2)

Faculty Adds
Sierk
Mr. Carro I 1 H. Sierk has returned to the St. Mary's faculty
as a full-time professor of law,
and has been assigned the task
of directing the Night Division.
A native of Dallas, Mr. Sierk attendedSt. Mary's University where
he earned his BBA and LLB degrees. After teaching Business
Law and Accounting at St. Mary's,
he was awarded a graduate fellowship in Taxation from the Southwestern Legal Foundation, and
attended Southern Methodist University where he received his
LL . M. Degree. While attending
St. Mary's Mr. Sierk gained membership in Kappa Pi Sigma Honorary Business Fraternity and was
awarded the Delta Theta Phi Law
Fraternity Scholarship Key. He
gained further recognition when
his name appeared in "Who's Who"
in American Colleges and Universities.
Mr. Sierk is a member of the
Texas Society of Certified Public
Accountants, as well as the State
Bar of Texas, and the American
Bar Association.

THE BARR!ST

Page Two

FRATERNITIES

THE
FACULTY CORNER

Phi Delta Phi

"A Professional Legal Publication"
Edited and Published by the Barristers
Student Bar Association St. Mary's University School of Law
San Antonio, Texas
Affiliated with American Law Student Association
Winner of second place, Offset Di vision, A.L.S.A.
Newspaper Contest, 1957, New York
VOL VII

SUMMER 1959

NUMBER 3

Editorial Board

EDITOR IN CHIEF ............................ .. ........ EDWARD V. DYLLA
MANAGING EDITOR .............................. JOHN M. FLATTEN JR.
PHOTO EDITOR .............................................. RICHARD WILSON
Editorial Staff

Alfred Coco
Buddy Chastain
Lange Hoffman
Frank Y. Hill Jr.
James Hope

Frank Flatten
Frank Southers
Jack Kelso
Bill Richards

------------------------------HAYES AIRCRAFT CORPORATION- San Antonio, Texas

THE LAWYER AND HIS
- PROFESSION
The practice of law is a profession. It is one of the oldest and
time honored professions that exist, along with that of medicine. Yet
although lawyers have maintained through the ages a high level of
integrity, today it is one of the most maligned professions. Even in
ancient times lawyers were considered a class by themselves in reference to being the subject of contempt and criticism. As far back
as the Sixteenth Century, Quevado, a noted Spanish courtier said,
"lawyers defend litigants in their suits as pilots do ships in storms,
relieving them of everything they possessed on the way; so that, with
God's grace, they may reach the short empty and despoiled".
Today a national survey of public opinion shows that lawyers are
rated lower than Chiropractors in public trust and appreciation. Why
is it, that the pub 1i c who benefit from the services of an attorney
feel an innate distrust and fear of the legal profession? Could it be
that the practice of law is by nature very techanical, that some of the
procedures are shrouded in an unpenetrable curtain of details? The
very complexity and almost slavish adherance to details sometime
bewilder a layman, especially when equity cannot be followed. But
also a few lawyers have besmirched the record of all by unethical
practice, and although this is by far the minority it always makes a
deep impression on the public. Public opinion is sometimes formed
as a consequence of the result of highly publicized cases. A lawyer
is sometimes blamed for the idiosyncrasies of the jury. Or the brilliant machinations of a trial lawyer rna y sway the opinion of a jury,
so that their verdict is not popular with the masses. Also in defense
of minority groups or other unpopular causes, the lawyer has borne
the brunt of antagonism or criticism for his duty-bound efforts in the
action.
But all this speculation boils down to one question, what can we
do to erase this age old stigma? The primary method advised by the
American Bar Association is to educate the public, not so much in
schools but in everyday civic affairs, in daily contacts with people.
It is very important to maintain a personal and professional life that
is an exemplary example of the ideals of the legal profession. This
should apply to students of the law as well as to lawyers themselves.
In the words of Theodore Roosevelt, "every man owes some of his
time to the upbuilding of the profession to which he belongs".

A prime attribute for any person
engaged in the practice of teaching is the ability to communicate
capably with the students. A congenial personality and an understanding of the students position
combined with a strong command
of the subject matter make this
attribute immediately apparent in
those courses instructed here at
the School of Law by Mr. Clyde
E. Johnson. Mr. Johnson always
displays a genuine interest in his
students and readily offers his
assistance with any problems their
scholastic endeavors might present.
The fact that Mr. Johnson is
himself a graduate of St. Mary's
possibly best explains his interest in the school. Although Mr.
Johnson is a native of Illinois,
he has called San Antonio his
home since childhood. Prior to
completing his higher education,
he served his country as a member of the Army Air Corps during
WWII. Attaining the rank of
Captain, he flew 38 combat missions as a bomber pilot in the
Pacific Campaign. Upon leaving
the service, Mr. Johnson entered
Trinity University where he com·
pleted his pre-law requirements.
He subsequently entered St. Mary's
School of Law, graduating in 1950.
After joining a large law firm Mr.
Johnson entered into a partnership with Mr. Pat Legan. In August, 1958 he entered into private
practice, exerting his interest
in the field of general civil law.

Mr. Clyde E. Johnson

Mr. Johnson first began teaching at St. Mary's in January, 1951.
Students of both the day and night
divisions have received the benefits of his instructions in a
diversity of subjects, including
Torts, Agency and Partnership,
Personal Property, Writs, and the
Law Apprenticeship Series. ln
addition to his activities as a
practicing attorney and professor,
Mr. Johnson also serves as Corporation Court Judge in the City
of Terrell Hills.
When asked of his hobbies, Mr.
Johnson replied "work", but admitted that he enjoys a game of
golf when he finds the time.
Mr. Johnson and his wife Doris
are the proud parents of a son,
Russell, 7 and a daughter, Beth,
5. He is a member of Travis Park
Methodist Church, and of Phi
Delta Phi Legal Fraternity.
0

Dean Ernest A. Raba receiving Achievement Plaque
from Robert G. Davis

Justice Norvell presenting St. Thomas More Award to E.]. Burke Jr.

Delta Theta Phi

On May 7th, 1959, in conjunction with the annual Law Day
activities sponsored by St. Mary's
University School of Law, Phi
Delta Phi Legal Fraternity presented three annual awards to
outstanding students. Philip Day
was chosen as outstanding Phi
Delta Phi Member ofthe year, and
was further honored AS the outstanding graduate of the year by
the fraternity. The outstanding
freshman award which is presented
to the student with the highest
academic average at the completion of two full semesters was
received by J. Paul Fly.
The day was brought to a fitting conclusion when the Frat•
ernity held its annual Spring Dinner Dance at the Anacacho Room
of the St. Anthony Hotel.
Among the many guests of the
Inn were Supreme Court Justice
Joe R. Greenhill, guest speaker,
Justice R.C. Walker, Justice
James Norvell, and Justice Robert
Calvert, and their wives. The
evenings activities included presentation of Awards of Merit to
Ronald Herrmann, Philip Day,
and Mike Gonzales foroutstanding
service to the fraternity.
With the close of the 1959 Spring
semester, many Phi Delta Phi
brothers occupied positions on
The Dean's honor list for academic
achievement, Marvin Keifer heading the roll for the day division.
Phi Delta Phi wishes to extend warm congratulations to all
graduates and to wish them luck
and success in the coming years.

-

- -o

Ann u a 1 Awards Day for ~
school of Law, which was ct
bra ted on May 7, 19 59, found '
following brothers among II,
ranks of the honored; Brct
Frank Hill, who received
"Norvell Award" for his succe
in the annual Moot Court cot
petition eliminations; Brother
Coco, whose entry in the c
petition writing field earned
the "Domangue Award", a II
savings bond; Brothers Bob Pe .
John Hohman, and Jack Leon, t
were presented "Awards of Mer'
for their contributive efforts
behalf of the Law School; Brorh
Jay Norton and James Kerr,
cipients of the "Scholarship K11
awarded to the brothers graduat'
with the highest average; Br
Jack Leon, who received
sec on d honor in the "Merr
A ward" p r e s e n t e d to the o
standing graduate by Delta Tluj
Phi in honor of the late and rr
ered Brother Leslie Merr
Brother James Hope, who recei
an insurance company scho
ship as well as a Merit Award w
the highest current average in C
fraternity.
R
The day was brought to a fesr'
close when alumin and stud
members and their families
at the Old Heide 1 berg Inn
1
supper. Texas Supreme C d
Justice, Clyde Smith, was pri~
18
pal speaker at the event.
On June 26th the membt li
gathered for a party at the lov f
home furnished for the occas :
by Brother Lamoine Holland. ~
the fraternity took the occas f
0
to ins t a 11 the new officers h
follows; Buddy Chastain, !)I~
Ed Dylla, Vice Dean; Al C u
11<
'b
. h d J . k' ,.

SILVER JUBILEE
COMING SOON ~~~c~':~; R~~y arFloy~~~~a;;er
St. Mary's University Law
School will celebrate its 25th
year of professional education
in the school year of 1959-60.
The event is expected to be the
largest activity ever held in conjunction with the law school. The
date of the event, yet uncertain
is expected to be held late this
year.

I

r~-----~~~~~~~~~.~~~~~~~~~~~~~~~~~.-----~
~
-

Three Way Conference
M(

HICKMAN HONORED
(Continued From Page 1)
and Outstanding Phi Delta Phi
a wards to Phillip S. Day, by
Ronald Herrman, president of Phi
Delta Phi; Delta Theta Phi Scholarship Award to James Hope, the
Delta Theta Phi fraternity's
Merrem Award to Jack P. Leon;
Certificates of Merit for unselfish
contributions to and partie ipation
in the activities and functions of
the Student l3ar Association and
the law school to Joe Carinhas,
John !lohman, Ed Prud'Homme,
Jack Leon, Richard Harris and
Robert Perry, by the Barristers
Club.
Among the guests at the banquet were:
Justices of the Texas Supreme
Court, Joe Greenhill, Meade
Griffin, Clyde Smith, Frank P.
Culver, Ruel C. Walker, Robert
(Cont'd on Poge 4, Col. 4)

r

Rolls; L~moine Holland, Ma De
of the Rttuals; and Bob Da1 1
Bailiff.
ha
CONGRATULATIONS:
Ex
To Brother ED DYLLA, ho
new Editor-in-Chief of the
e
rister News who succeeds Br011 18
JOHN HOHMAN who graduatej 10
May. To Brother JACK LE pr
highest scorer from the St. Mw 16
group who participated in the ull
tober Bar Exam. Jack is prese
Assistant District Attorneykno
3exar County.
oril
of

A'
AI

... between attorney, client and one of
our experienced Trust Department officers
will open the door to new understanding
of the many advantages offered by a
Corporate Trustee in the sound hondling
of an estate. There's no obligation in such
a conference.

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At
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430 Solidad Street
between Martin & Pecan Streets
MEMBER

FEDERAL

DESPOSIT

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CNSURANCE



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Page Three

ENTS
Page 1)
This rule contains a proviso
should be noted. The pro·
reads as follows:
"Provided, however, that the
rights herein granted shall
not require the production of
written statements of wit·
nesses or extend to communications pas s in g between
agents or representatives or
the employees of either party
to the suit, or communications
b
etween any party and his
agents, representatives, or
their employees, where made
subsequent to the occurrence
o transaction upon which the
r
suit is based, and made in
connection with the prosecution, investigation, or defense
o such daim, or the circumf
stances out of which same has
arisen: and provided, further,
that the rights herein granted
shall not require disclosure
o information obtained in the
f
course of an investigation of
a claim or defense by a per·
son employed to make such
investigation. 1 1

good cause shown, the court in
which the action is pending may
make an order that:
1. The deposition shall not
be taken.
2. That it may be taken only
before the court or at some
designated p 1 ace other
than that stated in the no·
tice or subpoena.
3. That it may be taken only
on written interrogatories
or that it may be t a k e n
only by oral examination.
4. That certain matters shall
not be inquired into.
5. That the examination shall
be held with no one present except the witness and
his counsel and the parties
to the action and t h e i r
officers and co u n s e 1.
6. That the deposition shall
not be taken by or before
the officer having the commission.
7. That after being sealed,
the deposition shall be
opened only by order of
the court.
8. That secret processes,
developments or research
need not be disclosed.
9. That the part i e s shall
simultaneously file specified documents or information, enclosed in sealed
envelopes to be opened
as directed by the court.
10. The court may make any
other order which justice
requires to protect the part
or the witness from undue
annoyance,
embarrassment, oppression or expense.
Some examples of how the
courts might use this protection
rule are that the court may require
the deposition to be taken at a
certain place if the witness is not
physically or financially able to
appear, or may require that the deposition be taken on written interrogatories if the witness's
health will not permit an oral examination, or might d i r e c t the
taking of a corporation officer's
deposition at the place of business so books would be available, or bus in e s s not interfered
with, or the scope might be limited where secret processes or
formulas are involved, or the court
can prevent embarrassment such
as questions that might be asked
for newspaper publicity. Furrhermore, since the court can make
any order which justice requires,
it would seem to f o 11 ow that a
motion made after the examination
had begun would undoubtedly be
regarded as seasonably filed, and
more comment will be made about
this in connection with Rule 215a.

e
decedent was hit by
of the defendant's street cars.
~t~ediately following the acci·
, defendant 1 s o p e r a t o r o bm a 1 i s t of n a me s of the
ed
ssengers on the bus and plain·
Hwas not supplied with a list
the names of these witnesses
he tried to obtain a list b;
p
oena duces tecum at the time
uial. The Supreme Court held
It the trial court properly reed to permit the plaintiff to obthe list of witnesses on the
o~nd that the relevancy of the
timony of the potentia 1 witsses was not shown. Since the
the Supreme Court
handed down the decision of
Parte Laden, 325 S.W. 2nd 121,
~ing that a list of witnesses
ed by a bus operator in the
e fashion as the list obtained
the Oehler case was within the
•iso contained in both Rule
'a and 186a, and therefore not
1 to discovery.
O course, if the wit n e s s
f
sthe names of the witnesses,
the bus driver knew the names
witnesses from whom he
taken witness slips, then
se names could be discovered
deposition, but the investigadeveloped subsequent to the
or other transaction is SUBPOENA DUCES TECUM
Rule 202 authorizes the officer
by the proviso.
fhereas, Rule 187a enlarges commissioned to take the deposiscope of the permissible ex- tion to immediately issue and
Rule 18Gb protects the cause to be served a subpoena.
ie s and the witnesses from In addition to the subpoena directThe Rule provides that ing the wit n e s s to appear, the
notices served for the taking officer is also authorized by Rule
position upon motion season· 177a to issue a "subpoena duces
made and upon notice and for tecum" directing the person to

E REASON WHY

:e

]

ALSA DELEGATES PREPARE
FOR MIAMI MISSIONS

produce at such time and place
designated books, papers, documents, and tangible things, which
constitute or contain evidence relating to any of the matters withThe PLACE is Miami Beach, the TIME is August 22nd thruthe
in the scope of the examination.
26th, the EVENT is the lOth Anniversary meeting of the American
If the litigation is not of sufficient
Law Students Association. From all parts of the country where member
importance to justify an expensive
la.w schools are locat~d delegates are preparing to attend what proprocedure, the motion for dismtses to be the most interesting and enjoyable convention yet to be
covery as authorized by Rule 167
held by ALSA.
is probably the most inexpensive
Lange Hoffman and Thomas Joseph are eagerly awaiting the arrival
way to discover tang i b 1 e eviof the 22nd of August when they will leave by Eastern Airlines to redence, but if the litigation is of
present St. Mary's Law School as delegates to the convention. The
sufficient importance to justify
Barrister News wishes them an enjoyable time and good luck in their
the expense, then the deposition
attempt to bring back a national officer to St. Mary's Law School.
procedure, coupled with the subThe convention is being held at the Carillon Hotel where three
poena duces tecum power given
sessions of the ALSA House of Delegates composed of all registrants
to the court reporter, it is certainat the meeting will consider the reports of the Association's Comly the most effective me an s of
mittees, adopt appropriate resolutions, elect new executive officers,
discovering tang i b 1 e evidence.
and formulate a program for the Association for 1959-60.
For a discussion of this subject
A series of student bar workshops will be scheduled to assist
see 37 Texas Law Review 43.
member associations in organizing or improving their activities.
The penalty formerly contained in
Rule 202 for the failure of a party Visits to the programs of the other legal organizations, meeting at
to appear has been transferred t·o the same time, will include the opening assembly of the American Bar
Rule 215a and will be discussed Associ~tion and the debate and reception of the conference on personal finance law. A number of distinguished lawyers and bar leaders
under that Rule.
will speak during the meeting of ALSA and the convention will close
with the announcement of the results of various ALSA competitions
FORCING A PARTY TO
and a visit to the host school, Miami School of Law.

APPEAR

0

Rule 215a is designed to put
real teeth into the discovery proEDITORIAL COMMENT: The
ceedings, and especially those in
Conscientious Citizen: I couldn't
building which h o u s e s the St.
serve as a juror, judge. One
connection with the taking of deMary's School of Law once comlook at that fellow convinces
positions. It has always been a
pletely dominated the San Antonio
me he's guilty.
simple matter to force a party to
skyline. Rumor says that the law
JUDGE: "Quiet. That's the disappear. He could be attached and
trict attomey."
school may again occupy a place
brought in instantly if necessary.
in the skyline.
However, the difficulty has come
in what to do about a party or wit- - - - - - - - - - - - - - - - - - MEMBER FEDERAL DEPOSIT INSURANCE CORPORATION
ness who refuse to answer questions.
There is no question but that
the previous statute and r u 1 e s
have been unsatisfactory. By the
terms Articles 3748, 3757, and
5 769a, the notary public could
attach and could also fine and imThe Frost Bank Trust Department is proud
prison, but that procedure proved
to be ineffective. See Harbison
to assist attorneys and their corporate
vs. McMurray, 163 S.W. 2d 680.
Ther;-developed an attitude of
clients as
disfavor and resistance against
the exercise of such power by the
not a r y public who was not regarded as an official having judi• Stock transfer agent
cial authority. Furthermore,
• Dividend disbursing agent
imprisonment and the collection
• Trustee under Pension or Profit Sharing Plans
of a fine required the assistance
of a sheriff and, of course, sher• Agent with Investment Assistance
iffs hesitate to act without the
• Bond and Coupon Paying Agent
benefit of a court order.
• Trustee under Agreement or Indenture
In 1929 an effort was made to
correct the situation and Article
• Escrow Agent
2769b transferred the authority
• Stock or Bond Registrar
to punish to the court where the
case was pending, or the district
court of the county in which the
MEMBER FEDERAL DEPOSIT INSURANCE CORPORATION
witness resides. But again the
statute was deficient in that it
dealt only with compelling a witness to appear but did not specifically cover the situation when
the witness appeared but refused
to testify. Furthermo~e, transients
or non-resident persons were not
really affected by this rule since
only the judge and the court where
the case was pending or in the
county in which the witness resided could punish the recalciat
and
trant witness. Actually, the
problem was greater than simply
requiring the witness to appear.
IF IT'S IMPORTANT TO YOU ... IT'S IMPORTANT TO US!
(Cont'd on Page 4, Col. 2)

CORPORATE TRUST SERVICES

OF SAN ANTONIO· MAIN

COMMERCE

IF IT'S FOR
A TEXAS

LAW LIBRARY
ASK

on attorney appoints Bexar County National Bank as the executor
trustee of an estate, he does so with the assurance that all matters
be judged impartially, that the bank will be on the job always- con'9 to work hand in hand with the estate's attorney on all legal

THE TRUST DEPARTMENT
BEXAR COUNTY NATIONAL BANK
SAN ANTONIO, TEXAS

STATUTES
REPORTERS
DIGESTS
LOCAL BOOKS

VERNON
VERNON LAW BOOK CO.
KANSAS. CITY 6, MO.

Page Four

DEAN'S LIST
SUMMER 1959
At the end of each semester, those students who have completed two
full semesters of law work, and whose cumulative average places
them in the upper ten per cent of the total student body, are placed
upon the Dean's Honor List, as students of academic distinction, and
their names are recorded as a matter of permanent record. Only those
students carrying a normal load or more are eligible.
DAY DIVISION
Average

Hours

83.3
83.1
82.9
82.3
81.9
81.7
81.7
81.7
80.4

53
26 . 5
66.5
88
86
50
75 .5
24.5
65.5

EVENING DIVISION
Egger, Samuel Levi
84.3
Miller, Marvin
83 . 1
Zirkle, Ric hard M.
81.9
Morton, Clifford
81.8
Crites, Carl Raymond
80 .6
Evans, Charles David
80 . 1
Paul, Norman Lewis
78

64
54.5
66
51.5
43
47
18

1.
2.
3.
4.
5.
6.
7.
8.
9.

Kelfer, Marvin G.
Plumb, Peter
Hope, James
Day, PhilipS.
Mitchell, Robert F.
Southers, Frank
Guenther, Jack E.
Weitzel, Raymond
Chastain, Buddy R.

1.
2.
3.
4.
5.
6.
7.

School Average 73.2

o- - -

TAX COURSES
OFFERED
Two Tax courses will be offered at St. Mary's School of Law
this fall, Federal Income Taxation
and Estate and Gift Taxation. The
course in Federal Income Taxation
will meet each Monday, Wednesday, and Friday, 8 to 9 A.M.,
commencing September 16th and
running thru January 28th, 1960.
This course will be taught by
Carroll Sie rk.
Under the instruction of Professor Stanley Schoenbaum, Estate
and Gift Taxation will meet each
Tuesday and Thursday, from 12
to 1 P.M., commencing September
17th and running thru January
28th, 1960.

- - -- o- - - "PRE-NATAL INJURIES"
NET $100
Attorney Arthur A. Domangue,
prominent San Antonio Attorney
and St. Mary's graduate, presented the first annual "Domangue
Award", a $100 Savings bond to
AI Coco, senior law student.
The award, presented at the
Awards Day Banquet, is given
to the person writing an outstanding legal paper in the field
of Torts or Workman's Compensation. Mr. Coco wrote on "Modern
Views on Recovery for Pre- Nate!
Injuries"
The treatise was judged by a
committee headed by Attorney
Adrian Spears, President of the
San Antonio Bar Association .

AMEMDMENTS
(Continued From Page 3)
The intention of the deposition
procedure . was to procure testimony in advance of trial in order
to permit the party to make trial
prepar2.tions. The 194 7 amendment of Rule 202 approached the
problem differently and provided
that the failure of a party to appear, except for good cause
shown, would authorize the court
to penalize such party by denying
the right to present grounds of
relief or defenses. This Rule was
upheld in Knox vs. Long 257
S.W. 2d 289, but still complete
relief was not available since it
was held that a default could not
be taken against defendant and
the plaintiff still had to prove a
prima facie case.

DISSENT CRITICISES
There was no question hut that
Rule 202 improved the situation,
but it still had its drawbacks. For
example, see the case of Saenz
vs. Sanders 241 S.W. 2d 316 in
which the Court of Civil Appeals
upheld rhe action of the trial court
in refusing to set a case for trial,
but this h o 1 ding was strongly
criticized in the dissent.
Rule 215a places under the
control of the court the matter of
dealing with witnesses and parties who refuse to make pre-trial
disclosure by deposition. If a
party or other witness refuses to
answer any question, the oral examination or the written interroga-

DATES TO REMEMBER
November 12th, 13th, 14th .. Home builders Law Institute Hilton Hotel
San Antonio, Texas. Co- sponsored by the N~tional Home:
builders Association, John Peace, Chairman.
During February 1960 ...... Condemnation proceedings, a two day institute to be held in Corpus Christi Texas in cooperation
with Nuece s County Bar Association:
'
April 28th, 29th, 1960 .... Annual Estate Planning and Federal Taxation, Institute. Professor Schoenbaum, Chairman.
ST. MARY'S UNIVERSITY

SCHOOL OF LAW

112 College Street
San Antonio, Texas

Non-Profit Organization
U.S. POSTAGE

P A I D
San Antonio, Texas

Permit No. 787

tories may be completed on other
matters. Thereafter, on reasonable notice either party may apply to the court in which the action
is pending, or to the District
Court in the district where the
deposition is being taken, for an
order compelling an answer. If
the motion is granted and the
court finds that the refusal was
without substantial justification,
the court may require the refusing
party to pay the examining party
the amount of reasonable expenses incurred including reasonable attorney's fees . If the motion
is denied, then the moving party
may be required to pay expenses
including reasonable attorney's
fees. If, after the order is entered, the witness refuses to be
sworn or refuses to answer, he
may be held in contempt, or the
court may make such orders as
are just, and among others, those
listed by Rule 170. Rule 170 provides for an order that the matters regarding the character or
description of the thing, oc the
contents of the paper, or any
other designated fact, shall be
taken as es·tablished or an order
refusing to allow the disobedient
party to support or oppose designated claims or defenses, or an
order prohibiting him from introducing into evidence designated
documents or things or testimony
or an order striking out pleadings
or parts thereof, or staying further
proceedings until the order is
obeyed, or dismissing the action
or proceeding or any part thereof,
or rendering a judgment by default
against the disobedient party.
Similar penalties are provided in
Rule 215a for the failure of a party or witness to attend the deposition.

COURT HAS CHOICE
It would be noted that these
rules are very flexible and the court
is required to make only such orders
as are just, and the power given
is not exclusive and arbitrary but
rather is flexible. The court, in
addition to fine or imprisonment,
may within reason use as many
and as varied sanctions as are
necessary to balance the scales
of justice against any weight or
advantage to the disobedient party. For a full discussion of this
subject see the "Author's Comment" in Vernon's Texas Rules
of Civil Procedure 1959 Pocket
Pares following the various
amendments and additions to the
rules.
No longer can the excuse be
offered that the refusal of the opposing party to cooperate prevents
a party from making adequate trial
preparations. The 195 7 amendments have provided the tools by
which any alert attorney may uncover and discover all the facts
relied on by his opposing counsel. The use of these tools should
materially aid the disposition of

contested litigation. Where all
the facts are known to both parties, then it is obvious that more
settlements should be reached,
thereby eliminating the necessity
of long and expensive trials.

Phillip S. Day, who is a
graduate of St . Mary's
School of Law has been
$2,000 Comparative Law
ship at the University of
for the 1959 -60 academic
Day, a native of Brewer,
graduate magna cum laude.
He is a past president ol
Law School student body,
of Phi Delta Phi I ega!
The Barrister wish
Phil the best of luck in his
mic achievement.
o- - - -

HICKMAN HONORED

(Continued From Poge 2)
Hamilton, James R . Norvell and
Robert Calvert, accompanied by
their wives.
Judges of the Court of Criminal
Appeals, W. A. Morrison (presiding
judge), Kenneth K. Woodley, Lloyd
Davidson, Ernest 8 e 1 c her and
Wesley Dice.
Justices of the Court of Civil
Appeals, Fourth Judicial District,
Chief Justice W. 0. Murray and When there is no will,
Associate Justices Jack Pope and way for the Lawyers.
H. D. Barrow.
O'Mally)
The Very Rev. Walter J.
Buehler, President of St. Mary's Domangue; Mr. and Mrs.
University; Brother Gerald Spielhagen; Mr. Lee J
Schnepp, St. Mary's treasurer and Stanley Schoenbaum; Mr. and
vice-president in charge of opera- Robert Nogueira; Mr. and
tions; Mrs. Katherine Ryan, mem- Thomas Drought; Mrs.
ber of the Board of Trustees and Miller; Mr. Robert Lee 8
benefactor of the law school; Lt. Mr. and Mrs. John Pea
Gen. Guy S. Meloy, Fourth Army Sylvan Lange; Mr. Archie
Commander; Brig. Gen. Bert Mr. Leo Brewer and Mrs.
Johnson, Chief Judge Advocate wife of the dean.
of the Air Training Command; Mrs.
Justice Norvell
Harry Drought, esteemed friend of awards to
the law school; Arthur A. Mr. Burke.

1...-------------

For your

CONVENIENCE
A complete

TRUST
DEPARTMENT

COMMERCE AT NAVA

OUR POLICY
IS TO RETAIN
as counsel to the Estate

· ou.:iE AT{TttE ·
q

or Trust

· un er
H

0

TEL

SMORGASBORD
For the finest cuisine, superbly
prepared, you'll always enjoy the
endless variety of the famous
Gunter Smorgasbord.

LUNCHEON
11,45 A.M. - 2,JQ P . M.

DINNER
5,45 P. M -9:00P.M•
.



lOFFEE SHOP
For excellent food, or just a snack,
anytime of the day or night, visit the
Gunter Coffee Shop.

OPEN 24 HOURS A DAY

the

ATTORNEY selected
by the Testator or Trustor

to prepare the
Will or Trust agreement

Files

Collection

Citation

St. Mary's University School of Law, “Barrister News, 1959 Summer, V. 7 No. 3,” St. Mary's Law Digital Repository, accessed December 15, 2017, http://lawspace.stmarytx.edu/item/STMULAW_BarristerNews1959Summer.

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