Sa.99Gpr F '7^^ Dear S We with ou very us up any but the: we issi agreed we mal Tri UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY id it lake tice, »ntly ?ady 3.00, 1 are, Yours truly, This work is not intended to cover any forms for Pleadinj^. For tliese we refer you to our **^^W f teadittj) with goxm:' al , J^ ^ Jlcnd ^<^~^^?J, PRACTICAL FORMS. PEACTICAL FOEMS FOB USE IN CIVIL CASES IN COURTS OF RECORD IN THE STATE OF TEXAS BY JOHN SAYLES COUKSELLOB AT LAW ST. LOUIS, MO. THE GILBEET BOOK COMPANY 1897 T 5a,996fr Entered according to Act of Congress, in the year 1897, by THE GILBERT BOOK COMPANY, In the office of the Librarian of Congress, at Washington. P'7 a. TABLE OF CONTENTS. Forms. Oath of Office 1 Clerks and Sheriffs — Offcial Bonds 2-8 Suit in Forma Pauperis 9, 10 Appointment of Counsel 11 Guardian ad Litem 12 Bond for Costs * 13 Citation for Personal Service 14r-19 Citation by Publication 20-24 Abatement of Suit 25-33 Witnesses 34r-36 Depositions 37-42 Change of Venue 43-45 Continuance 46-48 Original Attachment 49-55 Garnishment 56-64 Trial of Right of Property 65,66 Sequestration 67-74 Injunction 75-79 Certiorari to Justices' Courts 80-83 Arbitration and Award 83-85 Accounts gg Judgments 87-113 Appeals and Writs of Error 114-121 Executions and Orders op Sale 123-133 Sheriff's Deed 133 Scire Facias to Revive a Judgment ..,,... 134 Judgment Liens — Abstract fc I35 OvJ» PRACTICAL forms: No. 1. Oath of Office. T, A. B., do solemnly swear [or affirm] that I will faithfully and impartially discharge and perform all the duties incumbent upon me as , according to the best of my skill and ability, agreeably to the constitution and laws of the United States and of this state; and I do further solemnly swear [or ajfirm'] that since the adoption of the constitution of this state, I, being a citizen of this state, have not fought a duel with deadly weapons within this state nor out of it, nor have I sent or accejitecl a challenge to fight a duel with deadly weapons; nor have I acted as second in carrying a challenge, or aided, advised or assisted any person thus offending. And I further- more solemnly swear [w affirin] that I have not, directly nor indi- rectly, paid, offered or promised to pay, contributed nor promised to contribute, any money or valuable thing, or promised any public office or employment, as a reward for the giving or withholding a vote at the election at which I was elected [or, if the office is one of appoint nient, to secure my appointment] : So help me God. The above must be taken by all officers before they enter upon the duties of their office. Const., art. XVI, § 1. It must be taken and subscribed by a sheriff or constable, and indorsed on his bond; and when the bond is given and the oath taken, either officer may enter upon the duties of his office without waiting for a commission. R. S. 4^92, 4893, 4911, 4912. For form of oath to be administered to a jury, see 1 Tex. Civ. Prac, § 470. No. 2. Sheriff^s Bond. The State of Texas, ] County of . ) Know all men by these presents, that we, J. D. as principal, and M. N. and O. P. as sureties, are held and firmly bound unto the * See Manual of the Laios of Business, by Sa,y\es & Garrett, for suggestions and miscellaneous forms in Business and Legal Transactions. See Snyles^ Guide for Justices for forms applicable in proceedings injustices' Courts. For Precedents and Rules of Pleading, see Texas Pleading, loith Forms, by John Sayles. For Indictments and other forms in Criminal Procedure, with notes and sug- gestions, see Criminal Fonns, by Sam. A. Willson. Forms in suits to enforce Mechanics' Liens, see 2 Tex. Civ. Prac, §.^ 927, 928; R. S. 3297. 3298. 8 CLERKS AND SHERIFFS OFFICIAL BONDS. governor of the state of Texas, and his successors in office, in the penal sum of dollars; for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and ad- ministrators, jointly and severally. Given under our hands this day of , A. D. 18—. Whereas, the above bounden J. D. has been elected to the office of sheriff of the county aforesaid, at the general election held therein on the day of , A. D. 18 — : now, therefore, the condition of the above obligation is such, that if the said J. D. shall account for and pay over to the persons authorized by law to re- ceive the same, all fines, forfeitures and penalties that he may col- lect for the use of the state, or any county within the state ; and that he will well and truly execute, and due return make, of all process and precepts to him lawfully directed, and pay over all sums of money collected by him by virtue of any such process or precept to the persons to whom the 'same are due, or their lawful attorney; and that he will faithfully perform all such duties as may be required of him by law, then the above obligation to be void, or else to remain in full force. J. D. M. ]sr. o. p. The sheriff's bond must be in such sum as may be directed by the commis- sioners' court, not less than five nor more than thirty thousand dollars, with two or more good and sufficient sureties, to be approved by such court. The bond and oath of office indorsed thereon must be recorded in the office of the clerk of the county court, and deposited in said office. The bond must be executed within twenty days after the officer is notified of his election or the office will become vacant. The commissioners' court may require a new bond whenever they may deem the sheriff's bond insufficient. R. S. 4891-4895. For form of bond of sheriff as collector of taxes, see Sayles' Laws of Business, § 99. No. 3. Appointmetit of Deputy Sheriff, The State of Texas, ) County of . f Know all men by these presents, that I, the undersigned, sheriff of the county of aforesaid, do hereby appoint dep- uty sheriff in and for said county, with full power and authority to perform all the acts and duties required of me as sheriff aforesaid. In witness whereof I have hereunto set my hand this day of , A. D. 18—. J. D., Sheriff of the County of . The oath of office must be indorsed on the appointment, together with the certificate of tlie officer administering it; the appointment and oath must be recorded in the office of the county clerk and deposited in said office. R. S. 4896. CLERKS AND SHERIFFS — OFFICIAL BONDS. 9 No. 4. Deputy Sheriff'' s Bond to the Sheriff. The State of Texas, ) County of . f Know all men by these presents, that we, G. H. as principal, and M. IS", and O. P. as sureties, are held and firmly bound unto J. D., sheriff of the county of -, in the sum of dollars, to be ])aid to the said J. D., his executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally. Given under our hands this day of , A. D. IS — . Whereas, the above bounden G. H. has been appointed to the office of deputy sheriff of the«connty aforesaid, by the said J, D. as such sheriff"; now the condition of this obligation is such, that if the above bounden G. II. shall well and faithfully execute and discharge the duties of said office of deputy sheriff, during his continuance therein, without any deceit, fraud, delay, neglect or oppression, and shall save harmless and indemnify the said J. D., his executors and administrators, from and against all acts or doings, or neglect of duty of him, the said G. H., as such deputy sheriff, and pay off and discharge and save him harmless of and from all judgments, penalties, fines, costs, charges and damages in any action or pro- ceeding that may be brought against the said J. D. as such sheriff, by reason of any act or omission done, committed or suffered by the said G. H. as such deputy sheriff; and will likewise pay and dis- charge and save the said J. D. harmless from any costs and ex- penses he may incur or be put to in defending any action or proceeding commenced against him as such sheriff, by reason of any acts or doings or neglect of duty of him, the said G. H., as such deputy sheriff, whether such action or proceeding is rightfully brought against the said J. D. as such sheriff, or not; and that the said G. H. will pay to the said J. D., as such sheriff, his proportion of the legal fees received by him, the said G. H., at any time as such deputy sheriff, as aforesaid ; and also that the said G. H. Avill, at the termination of his ajipointment as such deputy sheriff, ac- count to and with tlie said J. D., his representatives, assigns or duly authorized agent, for all moneys collected or received by him as such deputy sheriff' as aforesaid, including all legal fees for services as such deputy sheriff"; and will i)ay over all moneys collected by him as aforesaid, and remaining in his hands, as well as the portion or share of the legal fees received by him, the said G. II., as such deputy sheriff" as aforesaid, then this obligation to be null and void; otnerwise to remain in full force and virtue. G. H. M. K. O. P. The above bond is authorized, but not required, by article 4897 of the Revised Statutes. By that article a sheriff has tlie same remedies against a deputy and Ills sureties that any person can have against the sheriff and his sureties. 10 CLEKKS AND SHEKIFFS OFFICIAL UONDS. No. 5. Bond of Clerk of District Court. The State of Texas, County of . Know all men by these presents, that we, W. F. as princi))al, and M. N. and O. P. as sureties, are held and firmly bound unto the governor of the state of Texas, and his successors in office, in the sum of five thousand dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally. Griven under our hands, this . day of , A. D. 18—. Whereas, the above bounden W. F. hath been elected to the office of clerk of the district court inand for the county aforesaid, at the general election held therein on the day of , A. D. 18 — ; now, therefore, the condition of this obligation is such, that if the said "W". F. shall safely keep the records and faithfully dis- charge the duties of his office, then the above obligation to be void ; or else to remain in full force. W. F. M. N. O. P. This bond, after having been approved by the commissioners' court, with the oath of office indorsed, must be filed and recorded in the office of tlie county clerk. Tlie oath prescribed by the constitution must be taken. R S. 1082. The bond of the county clerk may be the same as the above, except that it must be for a sum not less than two thousand nor more than ten thousand dol- lars, to be fixed by the commissioners' court. The bond, with the oath in- dorsed, must be recorded in the county clerk's office, and deposited in the office of the clerk of the district court. R. S. 1137. For a form for a county judge's bond, see Sa3-les" Laws of Business, § 998. No. 6. Appointment of Cleric Pro Tempore. API ' ■ ( In the District Court, • County, the day of , A. D. 18—. C. b. i It appearing to the court that , the clerk of this court,. is a party to the above-entitled cause, it is ordered by the court that be and he is hereby appointed clerk jjro tempore for the purposes of said suit. • The appointment may be made, hy a district or county judge, either in term time or vacation, of his own motion, or on the application of any person inter- ested, whenever the clerk is a party to any pending or proposed suit, motion or proceeding. The person appointed must take an oath faithfully and impartially to perform the duties of such appointment, and must enter into a bond. R. S. 1080, 1081, 1133, 1136. CLEHKS AND SHERIFFS OFFICIAL BONDS. It No. 7. Bond of Cleric Pro Tempore. The State of Texas, ) County of . ) Know all men by these presents, that we, J. K. as principal, and M. N. as surety, are held and firmly bound unto the state of Texas in the penal sum of dollars [to he fixed hy the judge of the courts for the payment of which, well and truly to be made, Ave bind our- selves, our heirs, executors and administrators, jointly and severally. Given under our hands the day of , A. D. 18 — , Whereas the above bounden J. K. has been appointed clerk pi'o tempore by the judge of the district court of county [or the county court], in a cause pending in said court, in which A. B. is plaintiff and C. J), is defendant; now, therefore, the condition of this obligation is such, that if the said J. K. shall faithfully perform his duties under such appointment, then this obligation shall be void ; otherwise to remain in full force. J. K. M. X. There must be one or more sureties, to be determined by the judge. The ap- pointee performs all the duties required by law of the clerk in the particular proceeding. R S. 1081, 1136. No. 8. Appointment of Deputy Cleric. The State of Texas, County of , Know all men by these presents, that I, the undersigned, clerk of the district court [or county court] of the county of afore- said, do hereby appoint deputy clerk of the district court in and for said county. In witness whereof I have hereunto set my hand and the seal of said court this day of , A. D. 18 — .^ [Z. S.] ^Y. F., Clerk of the District Court of County. The appointment of a deputy clerk of the district court must be filed and recorded in the office of the clerk of the county court. R. S. 1083. The appoint- ment of a deputy county clerk must be recorded in the office of the clerk of the county court and deposited in the office of the clerk of the district court. R. S. 1138. The deputies must take the oatli of office prescribed by the constitution (Form No. 1, supra). R. S. 1084, 1139. They are not required by law to give bond. 12 SUIT IN FORMA PAUPERIS. No. 9. Affidavit to Je Admitted to Sue as a Poor Person. 'No. — . V. >• In the Court, County. CD.) A. B,, plaintiff in the above-entitled cause, being duly Severn, says he is too poor to pay the costs of court and is unable to give security therefor. A. B. Sworn to and subscribed before me this day of , A. D. 18—. W. F., Clerk of Court, County. The truth of the above affidavit may be contested by the clerk, the trial to be before the judge at the next term after the contest is filed. R. S. 1442; 1 Tex. Civ. Prac, § 850. No. 10. Ap])ointment of Counsel for Poor Person. A. B. ) No.—. V. )■ CD.) A. B., being duly sworn, says that he is too poor to employ coun- sel to prosecute [or defend] the above-entitled cause. A. B. Sworn to and subscribed before me, this day of , A. D. 18—. W. R, Clerk of Court, County. To the Hon. , Judge of the Court of County : Your petitioner, A. B., represents that C D. is justly indebted to him in the sum of dollars; that he has commenced an ac- tion against him in the court in and for the county of for the same, but finds himself unable [or hath not yet cominenced an action against him for the same, heing unahle~] to carry on [or defend] said cause, as appears by the affidavit hereto annexed. Wherefore he prays that he raa}'^ be admitted to prosecute his said action inforinajjaiiperis, and that F. G. H., Esq., may be assigned to him as his attorney to prosecute [or defend] his said suit. A. B. It is ordered that A. B. be admitted to prosecute [or defend] his suit in forma pauperis, and F. G. H., Esq., is hereby appointed at- "torney and counsel in his behalf, as prayed for in the foregoing petition. E. B. B., Judge of Court, County. The appointment may be made by the judges of the district and county courts. K. S. 1109, 1164. APPOINTMENT OF COUNSEL BOND FOK COSTS. 15 No. 11. Appointment of Counsel to Defend for One Cited hy Piiblication^ In the Court of County. It appearing to the court that C. D., defendant in this cause, has been duly cited by publication, and that he has not filed an answer herein within the time prescribed by law, F. G. H., Esq., an at- torney of this court, is hereby appointed to defend this suit on be- half of the said C. D. An attorney must be appointed in all cases where a defendant is cited hy- publication and fails to appear. R. S. 1346, 3609. See 1 Tex. Civ. Prac, § 310». and notes. No. 12. Appointment of G-uardian ad Litem. A. B. ) No. — . V. V In the Court of County. C. D. and E. F. ) It being shown to the court that E. F., one of the defendants in the above-entitled cause, is a minor [idiot, lunatic or non compos^ mentis], and that he has no guardian within this state, is hereby appointed guardian ad litem for the purpose of defending said suit for the said E. F. See 1 Tex, Civ. Prac, §§ 193, 194. As to compensation of guardian ad liteniy. see 1 Tex. Civ. Prac, §728; R. S. 1210. No. 13. Bond for Costs. In the Court of County. Know all men that we, A. B. as principal, and M. IS", and O. P. as sureties, do hereby acknowledge ourselves bound to pay C. D. the sum of dollars, conditioned that the said A. B., plaintifif in the above-entitled suit, will pay all costs that may be adjudged against him in said suit, during the pendency or at the final deter- mination thereof, and judgment for said costs may be rendered against us. Witness our hands this day of , A. D. 18 — . Approved this day of , A. D. 18 — . W. F., A. B. M. K O. P. Clerk of Court, County. Security may be required at any time before final judgment, and may be given at any time before the suit is dismissed. A motion must be made and 14 CITATION rOK PEKSONAL SERVICE. entered in the motion docket, and there must be an order, made in distinct and appropriate terms, and entered in the minutes, of which the defendant must have actual notice. See 1 Tex. Civ. Prac, §§ 354, 355; R. S. 1489-1441. For aflSdavit of inability to give Security, see Form No. 9. No. 14. Citation for Personal Service. The State of Texas, To the Sheriff or any Cotistableqf County, Greeting: You are hereby commanded to summon to appear at the next regular term of the court of county, to be held at the court-house thereof, in the of , on the Mon- day in , 18 — , being the day of , 18 — , then and there to answer a petition tiled in said court on the day of , 18 — , in a suit numbered on the docket thereof, wherein is plaintiff and is defendant, the nature of plaintiffV demand being as follows: \8tate hriejly, hut correctly and substan tially, the nature of the demand.'] \lf the writ is to he served without the county in which the suit is pending, add: And you will also deliver to the said [or the said and each] the accompanying certified copy of plaintiff's petition,] Herein fail not, but have you before said court, on the said first day of the next term thereof, this writ, with your return thereon, showing how you have executed the same. Witness, , clerk of the court of county. Given under my hand and the seal of said court, at office, in the of , this the day of , A. D. 18 — . [Z. S.-\ W. F., Clerk of Court of County. Issued this day of , A. D. 18 — . W. F., Clerk of Court of County. A writ must be issued to each county in which there is a defendant or de- fendants. Where the writ is served within the county in which the suit is pend- ing, the service is made by delivering to each defendant a true copy of the writ. It must be served before the return day. R. S. 1318, 1218, 1328. In an alias citation the commencement is: "You are hereby commanded, as before, that you summon," etc. An alias pliiries citation commences: "You are hereby commanded, as oftentimes before, that you summon," etc. Sheriff'' s Indorsement and Return. Came to hand on the day of , 18 — , at o'clock — M. Executed within the said county of on the day of , 18 — , by delivering to the within named , in person [or to the within named and each], a true copy of CITATION FOR PERSONAL SERVICE. 1$ this citation. [If served without the county in ichich the suit is 2)endi7ig, add: and I also delivered to said , in person [or to said, and each in ■jperson\ a certified copy of plaintiff's petition. J. J^., Siieriff of County. J>y , Deputy. The day and hour of receiving the writ must be indorsed on the writ. Tlio return may be indorsed on or attaclied to the writ. R. S. 1217, 123."). If the writ has not been served, state w}i}% the diligence used, and where the defendant may be found, if known. R. S. 1226. No. 15. Citation ivhere the Suit is ht/ or afiainst One in a Particular Char- acter or Capacity. The State of Texas, To the Sheriff or any Constable of County^ Greeting: You are hereby commanded to summon • and , partners, to appear, etc., to answer the petition of , exec- utor of the last will and testament of , deceased, etc, [or of ■ and , husband and wifej or , su?'- vivor of and , partners,' or , receiver of the company^ etc. — proceeding as in Form iVb. 1j^'\. No. 16. Citation against a Domestic Corporation. The State of Texas, To the Sheriff or any Constable of County ^ Greeting: You are hereby commanded to summon the company, of which is president [name the president, treasurer, secre- tary, or the local agent who represents the company in the county in which the suit is pending, and continue as in Form iVb. lJf\. The above is the proper form where the defendant is a joint-stock company. Service may be made on either of the officers named, or by leaving a copy of the writ at the principal office of the company during office hours. If the suit is against a receiver of a railroad company, service may be had upon the receiver, or upon the general or division superintendent, or upon any agent of the receiver who resides in the county in which the suit is brought. It is the better practice to name the local agent, if any (1 Tex, Civ. Prac, § 283); but the writ must cite the company, not the officer or agent. IG CITATION FOK PERSONAL SEKVICE — CITATION BY PUBLICATION, No. 17. Citation against a Foreign Corporation. The State of Texas, To the Sheriff or any Constahle of County,. Greeting: You are hereby commanded to summon the company, of which is president [or name the vice-president, secretary, treasurer, general manager, or any local agent within the state, on either of whom service Tnay he made, and proceed as in Form No. l]i\. The above includes any " foreign private or public corporation, joint-stock company or association, or acting corporation or association." In a suit against a life or health insurance company by a policy-holder, serv- ice may be made upon any person within the state holding a power of attorney from such company. R. S. 3070. No. 18. Citation for a City, Toivn or Tillage. The State of Texas, To the Sheriff or any Constahle of County, Greeting: You are hereby commanded to summon the city of , of which is mayor \or name the clerk, secretary or treasurer, and proceed as in Form, Mo. lJf\. In a suit against a county the citation is served on the county judge. No. 19. Citation against Partners. The State of Texas, To the Sheriff or any Constahle of County,, Greeting: You are hereby commanded to summon and , partners {naming each partner, and proceed as in Form No. 1J^\. It seems that it is sufficient to state only the firm name, if the individual names are stated in the petition. See 1 Tex. Civ. Prac, §§ 369, 286. Sei'vice on one member will authorize a judgment against the firm and against the member served, but no personal judgment can be entered against the members not served. E. S. 1224, 1347; 1 Tex. Civ. Prac, § 286. No. 20. Affidavit for Citation ty FiiMication. In the Court, County. A. B., plaintiff in the above-entitled cause, being duly sworn» says that the defendant is not a resident of this state [or that the de- fendant is absent from this stale, or that the defendant is a transient CITATION BY PUBLICATION. 17 person, or that the residence of the defendant is unhnoimx to the o.ffi- mit]. Wherefore he prays that a citation be issued for service by publication. Sworn to and subscribed this day of , A. D. 18 — , before me. " W. ¥., Clerk of Court, County. If the suit is against a life or health insurance company by a policy-holder, the affidavit may state that no person can be found in the state holding a power of attorney from such company. R. S. 3070. In a suit for the partition of real estate, state that an undivided portion of the land described in the petition is owned by some person or persons unknown to the affiant. R. S. 3009. No. 21. Citation hy Publication. The State of Texas, To the Sheriff or any Constable of County, Greetimj: You are hereby commanded to summon , whose resi- dence is unknown, to appear at the next regular term of the court of county, to be held at the court-house thereof, in the of , on the Monday in , 18 — , being the day of , IS — , then and there to answer a petition filed in the said €Ourt on the da}^ of , 18 — , in a suit numbered on the docket thereof, wherein is plaintiff and • is defendant, the cause of action being alleged as follows: {Give a brief statement of the cause of action.'] Y^u are further commanded to serve this citation by publishing the same, once in each week for four consecutive weeks previous to the return day hereof, in some newspaper published in your county; but if there be no news- paper published in said county, then in any newspaper published in the judicial district [the one in ivhich the suit is pending] ; but if t^^ere be no newspaper published in said judicial district, then in a newspaper published in the judicial district nearest to said dis- trict. Herein fail not, but have 3'ou before said court on the said first . 18—. And now comes the said A. B., by his attorney, and the said C. D. comes not; and hereupon the said A. B. gives the court here to understand and be informed that since the last term of this court the said C. D. died. It is therefore ordered that a writ of scire facias do issue to the legal representative of the said C. D., when known, requiring him to appear at the next term of this court, then and there to show cause, if any he has, why he should not be made a party defendant to said suit. The suggestion may be entered of record in open court, or the court may act on the petition of tlie plaintiff. R. S. 1248. The suit may be revived against tlie heir in a proper case. See 1 Tex. Civ. Prac, §817; R. S. 1348. Where an executor or administrator is a party, either as plaintiff or defendant, and dies, or ceases to be executor or administrator befoi'e verdict, his successor, or the heir in a proper case, may be brought in. R. S. 1249. No. 27. Suggestion of the Death of One of Two Plaintiffs, the Cause of Action Surviving. A. B. and C. D. ) ]Sro. — . V. y ss. day of , A. D. 18—. * E. F. . ) And now comes the said A. B., by his attorney, and the said C. D. comes not; and hereupon the said A. B. gives the court here to understand and be informed that since the last term of this court, and before this day, the said C. D. died, and the said A. B. then survived him, which the said E. F. does not deny, but admits the same to be true. It is therefore ordered that no further pro- : ceedings be had at the suit of the said C. D., but that the suit be continued in the name of the said A. B., the surviving plaintiff. The above proceeding is proper when the cause of action survives to the sui*- viving plaintiff and against the surviving defendant. R. S. 1350. No. 28. Suggestion of the Death of One Who Sues for the Use of Another. No. — . V. [ ss. day of , A. D. 18—. CD. ) And now comes E. F., and gives the court here to understand and be informed that since the last term of this court the said ABATEMENT OF SUIT. 21 plaintiff, A. B., died ; and it api)earing to the court that this suit was brought by the said A. B. for the use of the said E. F., it is ordered tliat the same be continued in the name of the said E. F. as plaintiff. No. 29. Suggestion of (lie Death of a Sole Plaintiff in Actions for Causing Death. A. B. ) 'No. — . V. [ ss. day of , A. D. 18 — . CD. ) And now comes E. F., and gives the court here to understand and be informed that since the last term of this court the said plaintiff, A. B., died; and it appearing to the court that the said E. F. is a child of the said A. B., and one of the parties entitled to any money that may be recovered in this suit, it is ordered that the said E. F. be substituted as a party plaintiff, and that this suit be prosecuted in his name for the benefit of the persons entitled. If the defendant in the above action die, his executor, administrator or heir may be made a party. R. S. 1255. No. 30. Suggestion of the Marriage of a Female Plaintiff. day of , A. D. 18—. And now comes A. B., and gives the court to understand and be informed that since the institution of this suit she has intermarried with one E. F., who now makes himself a party to this suit, and it is so ordered. Foi- the proper practice where plaintiff fails to make the suggestion, see 1 Tex. Civ. Prac, § 321. . No. 31. Suggestion of the Marriage of a Female Defendant. day of , A. D. 18—. And now comes the said A. B., by his attorney, and gives the court to understand and be informed that since the institution of this suit the said C. D. has intermarried with one E. F., whicli the said 0. D. does not deny, but admits the same to be true. It is therefore or- dered that a writ of scire faci., etc., the witness before named, were made before me, and were sworn to and sub- scribed before me, by the said witness \or viltnesse^^ veKpeclh^et ij\ on the day of , A. D. IS—. Given under my band and official seal, this the dav of . A. D. IS—. ^, [Z. aS'.] Clerk, etc. 3d. The commission, interrogatories, cross-interrogatories, if any, and the ansAvers must be sealed' u|) in an envelope, and the commis- sioner will write his name across the seal and make the following' indorsement on the package, viz, : A. B. ) ^'- r C. D. ) Depositions of \iiaraes of witnesses]. 4th. Address the package to the clerk of the court of •county, Texas [the court from which the commission issued]. 5th. Depositions may be returned to the court either by mail, by a party interested in taking them, or by any other person. If sent by mail, the postmaster or his deputy mailing them must indorse on the package that he received it from the hands of the officer before whom the depositions were taken ; and the clerk, on taking them from the postoffice, must indorse on the package that he received it from the postoffice, and sign his name thereto. If sent otherwise than by mail, the person delivering them into court must make affidavit before the clerk that he received them from the hands of the officer before whom they were taken, that they have not been out of his possession since, and that they have undergone no alteration. 6th. Where the depositions are taken within the state, the officer may issue a subpoena for the witness, addressed to the sheriff or any, constable of the county. The officer may attach, line and im- prison the witness for failure to obey the subpoena, or for refusing to answer. Tth. In taking the deposition of a party to the suit, a commission is issued, and must be executed and returned by any authorized officer as in other cases. If the party interrogated refuses to an- swer, the officer certifies such refusal, and any interrogatory which the party refuses to answer, or which he answers evasively, is taken as confessed. The officer's certificate is not conclusive. See 1 Tex. Civ. Prac, § 396. 30 CHANGE OF VEXUE. No. 43. Consent of Parties to Change of Venue. In the Court, County. Xow come the said parties by their attorneys and consent that the above-entitled cause may be removed to the court of county for trial [a court of any other county having jurisdiction of the subject-matter']. , Attorney for Plaintijff. Attorney for Defendant. The above must be filed with the papers of the cause. R. S. 1270. No. 44. Application for Change of Venue. In the Court of County. ISTow comes C. D., the defendant in the above-entitled cause, and, being sworn, states that there exists in this county so great a prej- udice against him that he cannot obtain a fair and impartial trial [or that there is a cambination against hiin^ etc.^ or other cause., ac- cording to the statute] ; that the county of [the county whose court-house is nearest] is subject to the objection that [state some ob- jection sufficient to authorize a change of venue^ if there be any]. Wherefore he prays the court to change the venue of this cause to a county that is free from such objections. C. D. Sworn to and subscribed before me this dav of , A. D. IS—. W. R, Clerk of Court, County. Supporting Affidavit. In the Court of County. E. F., Gr. H. and J. K., each, being duly sworn, for himself states that he has seen and read the foregoing affidavit made by C. D. for a change of the venue of the above-entitled cause; that he is a resident of the county of , and is acquainted Avith the said C. D. ; CHANGE OF VENUE CONTINUANCE. 31 that he believes that the grounds for a change of venue stated in said affidavit are true and that they do in fact exist. E. F. G. H. J. K. Sworn to and subscribed before me, by the said E. F., G. H. and J. K., respectiveh^, this day of , A. J). 18 — . W. F., Clerk of Court, County. The credibility of the persons making the application, or their means of knowledge, or the truth of the facts stated, may be attacked by affidavit; and the issue thus made will be tried by the judge. R. S. 1273. No. 45. Order for Change of Venue. No. — . v. } ss. day of , A. D. 18—. This day came the parties by their attorney's, and then came on to be heard the motion for a change of venue, now here made by the said defendant; and the affidavit in support thereof bemg read^ and the argument of counsel being heard, it is ordered by the court that the venue of the above-entitled cause be changed to the county of , and that the clerk of this court transmit to the clerk of the court in and for the said county of • the original papers in this cause, and a transcript of all the proceedings had therein. The clerk must make out immediately a correct transcript of all the orders made in the cause, certifying officially thereto under the seal of the court, .and transmit the same, with the original papers in the cause, to the clerk of the court to which the venue has been changed. R. S. 1275. As to the time within which the application must be made, see 1 Tex. Civ. Prac, § 345. No. 46. First Aiyplication for a Continuance, on Account of Adsent Tes- timony. A. B. ) Ko. — . V. V In the Court of County. C. D. ) Now comes A. B., plaintiff in the above-entitled cause, and, being duly sworn, states that he cannot safely go to trial at this term of court, on account of the absence of E. F., who is a witness on be- half of the plaintiff; that the testimony of said witness is material^ and that he has used due diligence to procure the same by causing a subpoena to issue, etc. [stoJe full;/ and lyarticxdarly the facts sup- posed to show due diligence] ; that this is his lirst a[)plication for a 52 CONTINUANCE. continuance. "Wherefore he prays the court to continue this cause to the next term of court. A. B, Sworn to and subscribed before me this day of , A. D. 18-. W. F.; Clerk of — — Court, County. The above contains all the allegations required by the statute. R S. 1277. As to the acts necessary to constitute due diligence, see 1 Tex. Civ. Prac, ^g 414-434. An application for a continuance will not be heard before the defendant files his defense; it may be granted by consent of parties. R S. 1276. No. 47. Second or Subsequent Ai)iMcation for a Continuance. ISTo. — . V. [ In the Court of County. 'Now comes A. B., plaintiff in the above-entitled cause, and makes this his second application for a continuance, and, being duly sworn, says that he cannot safely go to trial on account of the ab- sence of E. F., who is a witness on behalf of the plaintiff; that the testimony of said witness is material [state facts showing it to he material]', that he has used due diligence to procure the testimony of said witness [stating facts showing due diligence, and the cause offaihire, if'known'\\ that the testimony which said witness would give, if present, cannot be obtained from any other source; that said witness resides in county, Texas, and affiant expects to prove by said witness that [state what plaintiff expects to prove hj ]d7n~\ ; and that a continuance is not sought for delay only, but that justice may be done. AVherefore plaintiff prays the court to con- tinue this cause to the next term of court. A. B. Sworn to and subscribed before me this day of , A. D. 18—. W. F., Clerk of Court, County. The above contains the allegations prescribed by statute. R S. 1278. What •will amount to due diligence in issuing subpoenas, taking depositions, procuring attachments for witnesses, etc., will depend upon the circumstances of each case. Of course there are other grounds of coiltinuance, such as surprise, ab- sence of counsel, etc. See 1 Tex. Civ. Prac, p. 389. It is said that counter-affidavits will be received on a second or subsequent application; and the adverse party may avoid a continuance by admitting the facts proposed to be proved by the absent witness. 1 Tex. Civ. Prac, gg 430, 431. A. B. No. — . v. CD. No. 48. Order fo r Con tinua nee. to This day came the parties by their attorneys, and then came on be heard the motion for a continuance, now here made by the ORIGIXAL ATTACHMENT. 33 said plaintiff; and the affidavit in support thereof being read, it is ordered by the court that this cause be continued until the next term of this court. No. 49. Affidavit for Writ of Original Attachment. 'N'o. — . V. >• In the Court, County. A. B., plaintiff [or K F.^ agent or attorney of the plaintiff '\ in the above-entitled cause, being duly sworn, says that the defendant, C. D., is justly indebted to him "in the sum of dollars and cents ; that the said C. D, is not a resident of this state [stating one or more of the statutory grounds']; that this attachment is not sued out for the purpose of injuring or harassing the said C. D., and that plaintiff will probably lose his debt unless an attachment is issued. Sworn to and subscribed before me this day of , A. D. IS-. W. F., Clerk of Court, County. The affidavit must be filed with the papers of the cause. It may be attached to the petition, or it will be sufficient to allege and swear to the necessary facts in the petition. 3 Tex. Civ. Prac, § 787. As to the requisites of the affidavit, and the manner of stating the statutory grounds, see 3 Tex. Civ. Prac, §§ 783- 787. If the debt is not due, it should be so stated, and when it will become due. 2 Tex. Civ. Prac, § 780. No. 50. Bond for Attacliment. In the Court of County. We, the undersigned, A. B. as principal, and and as sureties, acknowledge ourselves bound to pay to C. D. the sum of dollars [not less than double the amount sworn to he due], conditioned that the above bound A. B., plaintiff in attachment, against the said C. D., defendant, will prosecute his said suit to effect, and that he will pay all such damages and costs as shall be adjudged against him for wrongfully suing out such attachment. Witness our hands this dav of , A. D. 18 — . A. B. E. F. G. H. Approved this day of , A. D. 18 — . W. F., Clerk of Court, County. The above form is prescribed by the statute. Neither the bond nor the affi- ■davit will be held void for want of form, provided they contain all essential matters. R. S. 193. The bond must be in a sum not less than double the amount sworn to be due, 3 34 ORIGINAL ATTACHMENT. and must be conditioned for the payment of costs as well as damages. R. S. 190; 2 Tex, Civ. Prac, § 789. It must be filed with the papers of the cause. R. &. 191. As to the sureties, and the requisites of a bond by or to a partnership, see 2 Tex. Civ. Prac, §§ 790, 791. No. 51. Writ of Attachment. The State of Texas, To the Sheriff or any Constable of — — County, Oreeting: We command you that you attach forthwith so much of the property of C. D., if to be found in your county, repleviable on se- curity, as shall be of value sufficient to make the sum of dol- lars and the probable costs of suit, to satisfy the demand of A. B., and that you keep and secure in your hands the property so at- tached, unless replevied, that the same may be liable to' further pro- ceedings thereon, to be had before our court in , in the county of ■; on the day of , 18 — , when and where you shall make known how you have executed this writ. Witness , clerk of the court of county. Given under my hand and the seal of said court, at officein ^ this the day of , A. D. 18 — . [Z. S.-] W. R, Clerk of Court, County. Issued on the day of , A. D. 18 — . W. F., Clerk of Court, County. The writ will not issue until the suit has been duly instituted. It may be is- sued at any time during the progress of the suit. R. S. 188. It may bo levied on any property subject to execution, and is levied the same as an execution is levied. R. S. 200, 201; 2 Tex. Civ. Prac, t5§ 797, 1246-1261. Several writs may be issued at the same time, or in succession, and sent ta different counties, until sufficient property shall have been attached to satisfy the demand, R. S. 195; 2 Tex. Civ. Prac, § 792, and note. Officer^s Indorsement, and Return of Levy on Personal Property. Came to hand on the day of , A. D. 18 — , at o'clock — M., and executed on the day of -, A. D. 18 — , by levying upon the following described personal property belonging to the within named defendant, to wit [describe the property^, which said property now remains in my hands [or if the property has been claimed, or replevied, or otherwise disposed of, or any part thereof, so state, according to thefacts\. J. D., Sheriff of County. Where the officer takes possession of the property, as he must in all cases where tlie defendant is entitled to the possession, except in case of a "range ORIGINAL ATTACHMENT, 60 levy," it is probably sufficient for him to say that he levied, simply. If he levies by giving notice, he probably ought to so state, and this will show the disposi- tion made of the property. 3 Tex. Civ. Prac, §§ 796, 802, 806. Return of Levy on Heal Estate. Came to hand on the day of , A. D. 18 — , at o'clock — M., and executed on the day of , A. D. 18 — , at o'clock — M., by levying upon all the right, title and interest of , the within named defendant, in and to the following de- scribed tract [or tracti\ of land, to wit: \_Describe the jyroperty so as to identify it^^ J. D., Sheriff of County. The officer need not go upon the land to make the levy. The levy is made by the indorsement on the writ, and the lien of the attachment dates from the time of making the indorsement. 2 Tex. Civ. Prac, § 801. The officer must file a copy of the writ, and of his return thereon, with the proper county clerk for registration. R. S. 4GG9; 2 Tex. Civ. Prac, § 814. lieport of Disposition oj Personal Property after Return of Writ To , Clerk of Court of County: Be it known that since the return of the writ of attachment is- sued out of the court of county, in suit numbered , wherein is plaintiff and is defendant, the pro])- erty described in my return as having been levied upon has been replevied by the said defendant [or has been sold hy me pursuant to an order of court, and the proceeds of said sale remain in my hands; or, and the proceeds of said sale have heen replevied hy the defendant; or, loas delivered by me to , 07i the day of , A. I). IS — , on claim made by him pursuant to the statute^ J. D., Sheriff of County. The above report must be filed with the papers of the cause. R. S. 212; 2 Tex. Civ. Prac, § 807. Where perishable property is sold by order of court, the proceeds must be paid to the clerk within five days after the sale. See R. S. 208. No. 52. Bond of Indemnity upon Levying an Attacliment. A. B. ) . Ko. — . V. V CD.) "Whereas, a writ of attachment has been issued in an action pend- ing in the court in and for the county of , in favor of the above-named plaintiff, against the said CD. as defendant, which, by the direction of the plaintiff, has been levied by , sher- iff of county, upon certain goods and chattels, viz. [Jiere insert 36 ORIGINAL ATTACHMENT. descriptiori] {or which the said plaintiff has directed , sher- iff of county^ to levy upon certain goods and chattels^ vis.'] : Now, therefore, in consideration that the said , as sheriff, has levied [or shall levy'] said attachment upon the above-described prop- erty, we, A. B. as principal, and M. N". and O. P. as sureties, ac- knowledge ourselves bound to pay to , sheriff as afore- said, the sum of dollars, conditioned that the above-bound A. B. shall well and sufficiently indemnify, save and keep harmless the said , sheriff as aforesaid, from all costs, charges, dam- ages and suits that he may incur or become liable to in conse- quence of the levy of said attachment; and shall pay off, discharge and cancel all judgments, damages and costs that may be rendered against said by reason of said levy. Witness our hands this day of — — , A. D. 18—. A. B. M. K 0. P. See 2 Tex. Civ. Prac, § 805. No. 53. Replevy Bond by the Defendant in Attachment. A. B. ) No.—. V. [ CD.) Whereas, by virtue of a writ of attachment, issued out of the court in and for the county of , against C. D., at the suit of A. B., bearing date the day of , A. D. 18 — , sheriff of the county of , has seized and taken the following property in the possession of the said C. D., viz. [here insert a de- scription of the property seized and taTce7i\ and which by the said sheriff has been appraised at dollars, and has been permitted to remain in the hands of the said C. D, : Now, therefore, we, C. D. as principal, and M. N. and O. P. as sureties, acknowledge our- selves bound to pay to A. B., plaintiff in said attachment, the sum- of dollars [double the amount of the plaintiff '' s debt, or, at the defendant's option^ for the value of the 'property replevied^ to he esti- mated by the offcer\ conditioned that should the. said C. D. be con- demned in said action he shall satisfy the judgment which may be rendered therein, or shall pay the estimated value of the property, with lawful interest thereon, from the date of this bond. Witness our hands this Approved this day of of , A. D. 18 . CD. M.N, 0. P. A. D. 18—. J. D., Sheriff of < County. The above bond must be filed among the papers of the cause. R. S. 311. Where property has been sold pending the proceeding, the defendant may re- ORIGINAL ATTACHMENT. 37 plevy the proceeds of sale, by giving a bond conditioned as above, and in a sum double the amount of money arising from the sale. R. S. 216. There is now no provision for special bail, nor for a replevy by the plaintiff. No. 54. Application for Sale of Perishable Property Seised Vmler Attach- ment. la the Court, County. And now comes the said A. B. [or other party interested, includ- ing the officer\ by his attorney, and shows that the personal property, to wit, bushels of corn, heretofore seized by , sheriff of county, under and by virtue of a writ of attachment issued in said cause, is in danger of serious waste and decay [or, is of such a nature that the keeping of the same until the trial toill necessarily he attended with such expense {or deterioration in value, or hoth) as greatly to lessen the amount likely to he realized therefroni], and he prays for an order to sell the same. A. B. The judge may require or dispense with notice to the parties, and may act upon such information, by affidavit, certificate of the attaching officer, or other proof as may seem to him necessary to protect the interests of the parties. Tlie sale is to be made as on execution, but the time of advertisement may be fixed by the judge for a shorter period, according to the exigencies of the case. R. S. 206, 207. No. 55. Order of Sale of Perishahle Property Seized Under Attachment. The State of Texas, To the Shei'iffor any Constable of County, Greeting: Whereas, A. B. has applied to the court of county [or, to , judge of the court of county^ for and has obtained an order to sell certain personal property, to wit, bushels of corn, seized by , sheriff of county, on the day of , A. D. 18 — , under and by virtue of a writ of attachment is- sued in a certain cause now pending in said court, Avherein A. B. is plaintiff and C. D. is defendant : Xow, therefore, you are com- manded that you proceed, according to law, and sell the above de- scribed property, as under execution, first giving days' notice [to he fixed hy the judge'] of the time and place ot sale. Herein fail not, and within five days after making said sale you will pay the proceeds of the same to the clerk of said court, and make your report in writing, signed by you otticially, stating the time and place of making said sale, the name of the purchaser, the 17yl85 38 ORIGINAL ATTACHMENT GARNISHMENT. amount received, together with an itemized account of the expenses attending the sale. Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in , this the day of , A. D. 18 — . [Z. S.-] W. F., Clerk of Court, County. Issued on the day of , A. D, 18 — . W. F., Clerk of Court, County. Officer'' s Return, or Report of Sale. Came to hand on the day of , A. D. 18 — , at o'clock. — M., and executed by selling the within-described personal prop- erty, to wit, bushels of corn, on the day of , A. I). 18 — , at the court-house door of county, to , for the sum of dollars, that being the highest sum bid for the same, said sale being made pursuant to written advertisement, posted for successive days, at three public places in said county, one of which was at the court-house door of said county. And I here- with pay the said sum of dollars to , the clerk of said court. [Add itemised accowit of expenses of sale.'] Sheriff of County. No. 56. Application for Writ of GarnisJiment in Aid of an Attachment. In the — — Court, County. And now comes the said A. B., plaintiff in the above-entitled cause, and makes application for a writ of garnishment against one E. F. ; and, being duly sworn, says that he has sued oat a writ of attachment against C. D,, defendant in said cause; that the said E. F. is a resident of the county of [op mai/ now he found within the county of ],* and that he has reason to believe, and does believe, that the said E. F. is indebted to the said C. D., or has in his hands effects belonging to the said C. D. \_If the garnishee is an incorporated or joint-stock company: state the facts, and that he has reason to believe, and does believe, that the said C. D. is the owner of shares in said company, or has an interest therein.] Sworn to and subscribed before me this day of , A. D. 18—. W. F., Clerk of Court, County. For the authority for making the allegations as to the fact of indebtedness or the possession of effects in the alternative, see Carter Bros. v. Wise County GARNISHMENT. 89 Coal Co.. 2 App. C. C, § 213; White v. Lynch, 26 T. 195; R. S. 219, 222. The pro- cess of garnishment is an inquisitorial proceeding, and the form of writ author- ized by the statute (art. 222) makes a very searching inquiry, going even beyond the allegations required to be made in the aflSdavit; but it is held that the stat- ute is not entitled to a liberal construction in favor of the party seeking the remedy. 2 Tex. Civ. Prac, § 834 Of course if the plaintiff is in doubt, but believes in the truth of either one or the other of the alternatives, then the statement ought to be made in the alternative; if he believes that the garnishee is both indebted and has effects, the statement may properly be made conjunctively. It sometimes happens, it is said, that an affidavit is bad which follows literally the words of the statute itself. Moody v. Levy, 58 T. 532; 2 Tex. Civ. Prac, § 785. No. 57. Application for Writ of Garnishment ivliere Plaintiff Sues for a Debt ivithout Suing Out an Attachment In the Court, Couatj. And now comes the said A. B., plaintiff in the above-entitled cause, and makes application for a writ of garnishment against one E. F. ; and, being duly sworn, says that he has instituted a suit for debt against C. I)., defendant in said cause, in the court of county, to recover the sum of dollars; that said debt is just, due and unpaid, and that the said C, D. has not, within affiant's knowledge, property within his possession within this state subject to execution sufficient to satisfy said debt; that the garnishment applied for is not sued out to injure either the said C. D. or the said E. F. ; that the said E. F. is a resident of county, and that he has reason to believe [following I^orm No. 56, supra, from *]. A. B. Sworn to and subscribed before me this day of , A. D. 18—. W. F., Clerk of Court, County. A bond is required in this case. See Form No. 5i), infra. No. 58. Application for IVrit of Garnishment after Judgment. A. B. ) v. "■ In the Court, County. €. D. I And now comes the said A. B., plaintiff in the above-entitled cause, and makes application for a writ of garnishment against one E. F. ; and, being duly sworn, says that heretofore, to wit, on the day of , A. D. IS—, in the court of county, he obtained a judgment against C. D., defendant in the 40 GAUNISHMENT. above-entitled cause, for the sum of dollars, with interest thereon at the rate of per cent, per annum from date, and costs of suit, amounting to the further sum of dollars; that said judgment remains wholly unsatisfied, and that the said C. D. has not, within affiant's knowledge, property in his possession^ within this state, subject to execution, sufficient to satisfy said judg- ment ; that the said E. F. is a resident of county, and that affiant has reason to believe, etc. {^following Form iVo. 56, from *]. A. B. Sworn to and subscribed before me this day of , A. D. 18—. W. F., Clerk of Court, County. No. 59. Bond for Garnisliment. In the Court, County. Know all men by these presents, that we, A. B. as principal, and M. N. and O. P. as sureties, do hereby acknowledge ourselves bound to pay C. D. the sum of dollars [double the amount of the debt claimed in the writ], conditioned that the above bound A. B., plaint- iff in the above-entitled cause, Avho has applied for a writ of garnish- ment in said suit against , will prosecute his suit to ef- fect, and pay all damages and costs that may be adjudged against him for wrongfully suing out said garnishment. Witness our hands this day of , A. D. 18 — . A. B. M. K O.P. Approved, etc. A bond is required only where the plaintiff sues to recover a debt without suing out an attachment. R. S. 218. See 2 Tex. Civ. Prac, § 828. No. 60. Writ of Garnisliment The State of Texas, To the Sheriff or any ConstaUe of County, Greeting: Whereas, in the court of county, in a certain cause wherein A. B. is plaintiff and C. D. is defendant, the plaintiff, claiming an indebtedness against the said C. D. of dollars, be- sides interest and costs of suit, has applied for a writ of garnish- ment against E. F., who is alleged to be a resident of your county [or to he within your county, or as the case may he^]', therefore, you are hereby commanded forthwith to summon the said E. F., if to be found \vithin your county, to be and appear before the said GAHNI8HMENT. 4t court at the next term thereof, to be lield at , in said county^ on the day of , 18 — , then and there to answer upon oath what, if anything, he is indebted to the said C. D., and was when this writ was served upon him, and what effects, if any, of the said C. D. he has in his possession, and had when this writ was served, and what other persons, if any, within his knowledge, are indebted to the said C. D., or have effects belonging to him in their possession [a7id if the garnishee he an incorporated or jointrstoch company, in which the defendant is alleged to he the owner of shares or interested therein, then the writ shall proceed: and further to answer what number of shares, if any, the said C. D. owns in sucii company, and owned when this writ Avas served]. Herein fail not, but of this writ make due return as the law di- rects. "Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in the town of , this day of , A, D. 18 — . [Z. S.-\ W. F., Clerk of Court, County. Issued this day of , A, D. 18 — . W. F., Clerk of Court, County. The above form is prescribed by statute. R S, 222. The preliminary state- ment is adapted to a case in which plaintiff sues for a debt without the aid of an attachment. Where he sues out an attachment, or sues out the writ after judgment, the preliminary statement may be varied to suit the facts. The writ must be served forthwith, by delivering a copj' to the garnishee, and the officer must make return thereof as of other citations. R. S. 223, 224; 2 Tex. Civ. Prac, ^ 833. As to service on a corporation, see 2 Tex. Civ. Prac, § 834. Where the garnishee is a corporation, it would probably be proper to name the officer or local agent on whom service may be made, according to the sug- gestion of the appellate courts in the case of ordinary citations. See 1 Tex. Civ. Prac, § 283; also Forms for Citations, supra. No. 61. Replevy Bond in Garnishment Proceedings. A. B. ) Kg.—, v. [ CD.) Whereas, a writ of garnishment was issued out of the court of county, on the day of , A. D. IS — , in a suit therein pending, numbered , wherein A. B. is plaintiff and C. D. is de- fendant, on the application of the said A. B., and Avas on the day of , A. D. 18 — , by the sheriff of county, served on E. F., named as garnishee therein : Xow, therefore, in order to re- lease from the lien of said writ any and all debts, claims, shares and effects, if any, owing by or in the possession of the said E. F. and belonging to the said C. D. at the date of service of said writ. 42 GARNISHMENT. and which may be owing by him or shall come into his possession up to the time of filing his answer as garnishee in said case [or lohieh 'became due, etc., where the hond is made after answer filed], we, C. D. as principal, and M. N, and O. P. as sureties, acknowledge ourselves bound to pay to the said A. B. the sum of dollars [double the amount of the plaintiff'' s dehf], conditioned for the pay- ment of any judgment that may be rendered against the said E. F. as garnishee. Witness our hands this day of , A. D. 18 — . CD. M.N. O. P. Approved this day of , A. D. 18 — . J. D., Sheriff of County. See procedure suggested in 83 T. 243; 2 Tex. Civ. Prac, p. 832, note 3. See, also, 2 Tex. Civ. Prac, §§ 835, 852. No. 62. Commission to Tahe Answer of a Garnishee Residing in Another County. The State of Texas, To the Cleric of the District Court, County Judge, Cle7'h of the County Court, or any Notary Public, of County, Greeting: Whereas, on the day of , A. D. 18 — , in a certain cause pending in this court, wherein A. B. is plaintiff and C. D. is de- fendant, the plaintiff claiming an indebtedness against the said C D. of dollars, besides interest and costs of suit, a writ of garnishment was issued by this court against E. F., of your county, which was-af terwards returned duly served on the day of , 18 — ; and whereas the said E. F. has failed to make answer to the said writ : l^ow, therefore, you are hereby commanded forthwith to summon the said E. F. before you to answer upon oath what, if any- thing, he is indebted to the said C. D., and was when the said writ of garnishment was served upon him, and what effects, if any, of the said C. D. he has in his possession, and had when the said writ was served, and what other persons, if any, within his knowledge, are indebted to the said C. D., or have effects belonging to him in their possession. \If the garnisliee be an incorporated or joint- stock company, in which the defendant is alleged to be the owner of shares, or interested therein, the commission will proceed: and fur- ther to answer what number of shares, if any, the saidC. D. owns in such company, and owned wlien the said writ was served, and what interest, if any, he has in said company, and had when the said writ was served.] GARNISHMKNT. 43 Herein fail not, but of this commission make return forthwith. Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in the town of , this day of , A. J). 18—. [Z. S.] W. F., Clerk of Court, County. Issued this day of , A. D. 18—. W. F., Clerk of Court, County. No. 63. Writ Summoning Garnishee to Appear Before Commissioner. The State of Texas, To the Sheriff or any Constable of County^ Greeting: Whereas in a certain causependinj^ in the court of county, wherein A. B. is plaintiff and C. D. is defendant, wherein the plaintiff claims of the said defendant the sum of dollars, besides interest and costs of suit, a writ of garnishment was issued against E. F. of your county, which was duly served upon him on the day of , 18 — , 'requiring him to answer thereto before the said court at its late term; and whereas, the said garnishee has failed to answer as required by said writ; and whereas, a commis- sion has been issued by the said court and lodged in my hands, whereby I am commanded to summon the said E. F, before me to make such answer: Therefore, you are hereby commanded forth- Avith to summon the said E. F., if to be found within your county, to be and appear before me, at my office in , on the day of , 18 — , then and there to answer upon oath what, if any- thing, he is indebted to the aforesaid C. D., and was when the afore- said writ of garnishment was so served upon him, and what effects, if any, of the said C. D. he has in his possession, and had when the said writ was so served; and what other persons, if any, within his knowledge, are indebted to the said C. D. or have effects belong- ing to him in their possession ; \and if the garnishee is an incorpo- rated or joint-stock company^ in which the defendant is alleged to he the owner of shares, or interested therein, the writ shall proceed: and further to answer what number of shares, if any, the said C. D. owns in such company and owned when the said writ was served, and what interest, if any, he has in such company and had when the writ was served] . Herein fail not, but of this Avrit make return forthwith. Witness, etc. \to he dated and tested hy the ojficer, with his official signature and seal of office']. The above writ is prescribed by statute. It is served by delivering a copy to the garnishee, and must be returned witliout delay to the officer who issued it. R. S. 233-235. 44 GARNISHMENT. Commissioner'' s Return. The State of Texas, ) County of . f In obedience to the commission hereto attached, the said E. F. personally appeared before me on the day of , A, D. 18 — , and made his answer, under oath, and subscribed the same before me, which answer is hereto attached and returned with said com- mission. In testimony whereof I have hereunto set my hand and seal of office this day of , A. D. 18 — . [Z. s.-] , Notary Public, County. Commissioner's Return ivlien the Garnishee Refuses to Appear and Answer. The State of Texas, County of . In obedience to the commission hereto attached, I issued a cita- tion for the said E. F., which was served on the said E. F, on the day of , A. D. 18 — , which citation, and service indorsed thereon, is returned with said commission. And I further certify that the said E. F. failed to appear before me in obedience to said writ [or, the said E. F. appeared hefore me at the time and place named in said citation, hut refused to make answer as therein re- quired; or, refused to answer fully, etc.']. In testimony whereof I have hereunto set my hand and seal of office this day of , A. D. 18 — . [L.S.] -, JS'otary Public, County. No. 64. Notice to Garnisliee that His Answer is Controverted. The State of Texas, To the Sheriff or any Constable of County y Greeting: Whereas, it appears that in a certain cause pending in the court of county, wherein A. B. is plaintiff and C. D. is defend- ant, E. F., a resident of your county, was summoned as garnishee and made answer therein. And Avhereas, the said A. B. has filed in this court {any court of the county ivhere the garnishee may reside, having jurisdiction of the amount of the judgment in the original suit] a duly certified copy of the original judgment in said suit and of the proceedings in garnishment, including plaintiff's application for the writ of garnishment, the answer of the said E. F. as gar- nishee, and the affidavit of the said A. B. controverting the answer of the said E. F. : Now, therefore, you are hereby commanded to notify the said E. F. that his answer has been so controverted, and TRIAL OF RIGHT OF PROI'KinV. 45 that the issue between hiin and the said A. B. will stand for trial at the next terra of this court, to be holden on the Monday in , A. D. 18—, being the day of , A. D. 18—, at" the court-house of said county. Herein fail not, but have you before said court, on the said first day of the next term thereof, this writ, with 3'our return thereon showing how you have executed the same. AVitness, etc. [to he dated and tested as other process']. The above is served by delivering a copj' to the garnishee. R. S. 350. No. 65. Claimants Oath. The State of Texas, ) County of . f Before me, , in and for the county of , on this day personally appeared E. F., who, being duly sworn, says that he claims title to the following described property [insert descrijytion'], levied upon by , sheriff of county, by virtue of a writ of execution [or sequestration^ or attachment., or other like wrifl issued out of the court of county, and dated day of , A. D. 18 — , in favor of and against , and that this claim is made in good faith. E. F. Sworn to and subscribed before me this day of , A. D. 18—. . {Any officer authorized to administer oaths.) No. 66. Claimanfs Bond. The State of Texas, County of . "Whereas, by virtue of a Avrit of [here describe the writ] issued out of the ■ court [or Ijy ^justice of thei^eacefor 'precinct No. , county] in favor of [here insert name of plaintiff \ versus [here insert name of defendant]^ and tested on the day of , A. D. 18 — , ^ [here in- sert name and title of officer seizing] has seized and taken the fol- lowing described personal propert}^, viz.: [here describe the property], the value of which property has been assessed by said officer at dollars. And whereas [hei^e insert name of claimant] has claimed said property and presented to said officer his oath in writing that such claim is made in good faith : Now, therefore, we, [here insert name of claimant] as principal, and and as sureties, acknowledge ourselves bound to pay to the said [insert name of plaintiff'] the sum of dollars, being double the value of said property, con- ditioned that the said [here insert name of claimant], in 46 SEQUESTRATION. case he fails to establish his right to said property, will return the same to the said [insert the name of the ojficer'], or his suc- cessor, in as good condition as he received it, and shall also pay the reasonable value of the use, hire, increase or fruits of the same from the date of this bond, and costs, or in case he fails to return said property and pay for the use, hire, increase or fruits thereof, that he will pay the plaintiff the value of the same, with legal interest thereon from date, and shall also pay all damages and costs that may be awarded against him. Witness our hands this the day of , A. D. 18 — . Approved this day of , A. D. 18 — . The officer must indorse on the writ that claim has been made and oath and bond given, stating by whom, and must indorse on the bond the value of the property assessed by himself, and forthwith return the bond and oath to the justice or court having jurisdiction to try the claim. R. S. 5290. If the writ was issued by a court of another county than that in which the levy was made, the officer must indorse on the bond the value of the property as assessed by himself, and forthwith return the bond and oath, with a copy of the writ, to the justice or court of the county in which the levy was made having jurisdiction according to the value of the property as assessed by the officer. He must also indorse on the original writ that claim has been made and oath and bond given, stating by whom, the names of the sureties, and to what justice or court the bond has been returned, and must forthwith return the original writ to the justice or court*from which it issued. R. S, 5293, 5294. If the assessed value of the property does not exceed $200, the writ must be returned to a justice of the peace; if more than $200 and less than $500, to the county court; if the value is $500 or over, the writ must be returned to the dis- trict court. See 2 Tex. Civ. Prac, § 881. The jurisdiction of the district and county courts is determined by reference to articles 1098 and 1157 of the Revised Statutes. No. 67. Affidavit for a Writ of Sequestration. In the Court, County. A. B., being duly sworn, says that he is the plaintiff in the above- entitled cause, and that said suit is brought against the said C. D. to foreclose a mortgage [or enforce a lien\ on tlie following described personal property, to wit, head of cattle, of the following <1q- ^;q,vv^\a.ox\. [desorihe the property so as to distinguish it from other jjroyerty of a like kind] ; that said cattle are worth dollars each [give the value of each article — about the milue of etc., is not sujficient], and are now in county, state of Texas; that the debt which said mortgage was given to secure is just and wholly unsatisfied [or state the amount remaining due\\ that it amounts to the sum of dollars, and became due [or vnll become due'] on the day of , A. D. 18 — ; and that he fears that the de- SEQUESTKATION. 47 fendant {or pei^son in possession of i fie property'] will injure (ill-treat, waste or destroy) such property [or w'tl remove it out of the UiniU of the county] during the pendency of the suit. A, B. Sworn to and subscribed before me this day of , 18 — . Clerk of Court, County. Analysis of Articles 4^6^, 4-^65, Revised Statutes; 2 Tex. Civ. Prac, §§ 858, 859. The above form of affidavit can only be suggestive in other cases. The statute specifies seven distinct grounds for the writ. The fol- lowing statements must be made in all cases: 1. That the plaintiff is the owner of the property or of some in- terest therein (if such is the fact), specifying such interest, and is entitled to the possession thereof. 2. In suits to foreclose a mortgage or lien on property, as in the above form. 3. The property to be sequestered must be described with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article and the county in which it is situated. 4. Set forth one or more of the causes named in article 4864. {a) If the suit is b}^ a married woman for divorce, that she fears her husband will waste her separate property, or their common property, or the fruits or revenue produced b}' either, or that he will sell or otherwise dispose of the same so as to defraud her of her just rights, or remove the same out of the limits of the county during the pendency of the suit. (b) In a suit for the title or possession of personal property, that he fears the defendant [or person in possession thereof] will injure, ill-treat, waste or destroy such property, or remove the same out of the limits of the county during the pendency of the suit. {c) In suits to foreclose a mortgage or lien on personal property, follow the above form. {d) In a suit for the title or possession of real property, that he fears the defendant [or person in possessio?i thei'eof] will make use of his possession to injure such property, or waste or convert to his own use the fruits or revenue produced by the same. {e) In a suit for the title or possession of any property, that he has been ejected therefrom by force or \aolence. (/■) In a suit to foreclose a mortgage or enforce a lien on real es- tate, that he fears the defendant [or person in possessioti thereof] will make use of such possession to injure such property, or waste or convert to his own use the timber, rents, fruits or revenue thereof. (g) In a suit (1) to try title to real property, (2) to remove a cloud, (3) to foreclose a lien, (4) for partition, that the defendant [or either of tliem in the event there he more than one] is a non-resident of this state. The allegation as to the location of the property may be made either in the original or in a supplemental affidavit. R. S. 48G9. 48 SEQUESTKATION. No. 68. Bond for Writ of Sequestration. In the Court, County. Know all men by these presents, that we, A. B. as principal, and M. IS", and O. P. as sureties, do hereby acknowledge ourselves bound to pay C. D. the sum of dollars [a sum at least double the value of the property to he sequestered, as stated in the ajidavif], conditioned that A. B., plaintiff in the above-entitled suit, who has applied for a writ of sequestration, will pay to the said 0. D. all such damages as may be awarded against him, and all costs, in case it shall be decided that said sequestration was wrongfully issued. Witness our hands this day of , A. D. 18 — . Approved this day of , A. D. 18- Clerk of W. F., - Court, A. B. M. N" O. P. County. ■ Count]/, court in No. 69. Writ of Sequestration. The State of Texas, To the Sheriff or any Constable of- Greeting: Whereas, in a certain cause now pending in our - and for the county of , wherein A. B. is plaintiff and C. D. is defendant, the said A. B. has made application for a writ of seques- tration: Therefore, you are hereby commanded to take into your possession the following described property, valued in plaintiff's affi- davit at the sum of dollars, viz, [describe the property according to the affidavit^ if the same is to be found within your county, and keep said property subject to the future order of the judge of our said court, unless the same is replevied according to law. Herein fail not, but have you this writ, with your return thereon, showing how you have executed the same, before our court in and for the county of , to be holden in the court-house thereof, in the town of , on the Monday of , next, being the day of , A. D. 18—. Witness clerk of the court of county. Given under my hatid and the seal of said court, at office in the town of , this the dav of , A. D. 18 — . W. F., Issued this day of Clerk of -, A. D. 18—. Court, County. Clerk of W. R, - Court, County. SEQUESTRATION. 49 Officer's Return. Came to hand on the day of , A. D. 18 — , and executed by taking possession of the following described property, and the same now remains in my custody, to wit: [deso'lhe the 2yi'operty]. \Ifthe defendant has replevied the propertij: and the defendant C. D., having delivered to me his replevy bond, which is now returned Avith this writ, was permitted to retain })ossessi()n of said property.] J. D, Sheriff of County. The writ will not be issued until a petition has been filed as in other cases. K. S. 486G. No. 70. Replevy Bond hy the Defendant in Sequestration. A. B. ) No. — . V. ;- In the Court, County. c. D. ) ; Whereas, by virtue of a writ of sequestration, issued out of the court in and for the county of , against C. I), at the suit of A. B., bearing date the day of , A. D. 18 — , , sheritf of the county of , has taken the following personal prop- erty in the possession of said C. D. [here insert a description and the value of the prop>ertf\., and the said C. D. having been per- mitted to retain possession of the same : Now, therefore, we, C. D. as principal, and M. N. and O. P. as sureties, acknowledge ourselves bound to pay A. B., plaintiff in said suit, the sum of dollars [douhie the value of the property sequestered^,^ conditioned that said C. D. will not remove said property out of the county [or loill not waste, ill-treat., injure., sell or dispose of the same, according to the allegations of the affidamf], and that he will have said property, with the value of the fruits, hire or revenue thereof, forthcoming to. abide the decision of the court, or Avill pay the value thereof, and of the fruits, hire or revenue of the same, in case he shall be condemned so to do. Witness our hands this day of ^ A. D. IS — . Approved this day of , A. D. 18 — . CD. M. K O. P. J. D., Sheriff of County. Condition of Bond ivliere the Property is Real Estate. Follow the preceding Form to * and proceed: Conditioned that the said C. D. will not injure said property, and that he will pay the value of the rents of the same in case he should be condemned so to do. The replevy bond must be returned with the writ into court. R S. 4876. When both real and personal property is seized, the bond must be conditioned 4 50 SEQUESTRATION. SO as to cover both species of property. 2 Tex. Civ. Prac, § 867, and note 3 ors p. 863. In suits for the enforcement of a mortgage or lien upon property, the defend- ant, should he replevy, is not required to account for the fruits, hire, revenue- or rent of the property; but this exemption does not apply to the plaintiff if he replevies. R. S. 4883. No. 71. Meplevy Bond "by the Plaintiff in Sequestration. In the Court, County. Whereas, by virtue of a writ of sequestration, issued out of the court in and for the county of , against C. D. at the suit of A. B., bearing date the day of , A. D. 18 — , sheriff of the county of , has taken the following property found in the possession of said C. D. {^here insert a description and the value of the property], and said property having been delivered by said officer to A. B., plaintiff in said suit: !N"ow, therefore, we, A. B. as principal, and M. N. and O. P. as sureties, acknowledge ourselves bound to pay to C. D. aforesaid the sum of dollars^ [double the value of the property sequestered], conditioned that said property, together with the value of the hire, fruits, revenue and rent thereof, shall be forthcoming to abide the decision of the court. Witness our hands this day of , A. D. 18 — . A. B. M.N. O. P. Approved this day of jA. D. 18 — . J. D., Sheriff of County. If the defendant, his agent or attorney, is present in the county at the time of the levy, he must replevy within ten days after tlie levy; if absent, within twenty days. If he fails, the plaintiff may replevy. R. S. 4880. Where property is ordered to be sold, either party may replevy at any time before the sale. R. S. 4883, Plaintiff's replevy bond must be returned with the writ. R. S. 4881. No. 72. Ap])lication for Sale of Perish al)Ie Property Seised Under a Writ of Sequestration. A. B. ) Ko. — . V. [ In the Court, County. CD. ) Now comes A. B., plaintiff in the above-entitled cause [or C. D.y the defendanf\ and makes application for a sale of the following property, seized by the sheriff of county on the day of SEQUESTKATION. ■"» 1 , A. D. IS — , under a writ of sequestration issued in said cause, to wit [describe the property'] ; and, being duly sworn, says tliat said property has not been replevied, but remains in the hands of said sheriff, and that said property [or some p>art thereof^ to he specified^ is likely to be wasted [or destroyed^ or greatly depreciated in value] by keeping; that the debt sued for in said suit became due, etc. [if not diie^ so state]. A. B. Sworn to and subscribed before me this day of , A. D. 18—. W. F., Clerk of Court, County. I certify that the above affidavit is true. J. D., Sheriff of County. Order of Judge. The State of Texas, ) In Chambers, this the day of , County of . f A. D. 18—. Having read and considered the foregoing affidavit and certifi- cate, it is ordered that the sheriff of county proceed to sell the property described in said affidavit as under execution, and that he make due return thereof according to law, pursuant to an order of sale to be issued. [If the suit was hrought for a demand not yet due: and as it appears that said suit was brought for a demand not yet due, it is further ordered that a credit be given to the pur- chaser at the sale until said demand becomes due, to wit, the day of , A. D. 18—.] G. H., Judge of the Court of, etc. No. 73. Order of Sale of Property Seized Under Writ of Sequestration. The State of Texas, To the Sheriff of County., Greeting: "Whereas, A. B. has applied to our court within and for the county of [or to the judge in vacation] for and obtained an order to sell certain property seized by you under and by virtue of a writ of sequestration issued out of said court, in a certain cause wherein A. B. is plaintiff and C. D. is defendant, the said property being described as follows, to wit [describe the property] : Xow, therefore, you are commanded to sell said property as under exe- cution, first giving ten days' notice of the time and place of sale, according to the statute in such case made and provided. [If the suit is for a demand not due: You are further commanded to make said sale on credit, until the day of , 18 — , tak- ing a bond from the purchaser, with two or more good and suffi- cient sureties, payable to you as slieriff of county, in the sum of dollars [jiot less than double the amount of the purchase- money]., conditioned that such purchaser shall pay the purchase- money at the expiration of the time given.] 52 SEQUESTEATION. Herein fail not, and within five days after making such sale j'-ou will pay the proceeds of the same to the clerk of our said court [or 'return the hond of the j^ur chaser, as the case may he\ and have you then and there this writ, with your return thereon showing how you have executed the same. Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in the town of , this the day of , A. D. 18 — . . [Z. 8.-] ' W. F., Clerk of Court, County. Issued this da}^ of , A. D. IS — . W. R, Clerk of — Court, County. Sheriff's Beturn. Came to hand on the day of , A. D. 18 — , at o'clock — M., and executed by selling the following described property, to wit [descrihe the 'property\ on the day of , A. D. 18—, at the court-house door of the county of , first having given no- tice of the time and place of said sale for ten days successively, by posting written notices at three public places in said county, one of ' which was at the court-house door of said county ; at which sale said property was struck off to for the sum of dol- lars, he being the highest bidder therefor, and I herewith return the proceeds of said sale, to wit, the sum of dollars \or the hond of the ;purchaser'\ into court. J. D., Sheriff of County. No. 74. Bond ofPurcJiaser of Property Seised Under a Writ of Sequestra- tion. A. B. ) ■TTo. — . V, >- In the Court, County. CD.) Whereas, by virtue of an order of sale issued out of the court of county, in a certain cause pending in said court wherein A. B. is plaintiff and C. D. is defendant, the following property \_here inse?'t a description of the property^ seized by , sheriff of county, by virtue of a writ of sequestration issued in said cause, was on the day of , A. D. 18 — , sold by said sheriff on a credit until the day of , A. D. 18 — [Jiere insert the time when the plaintiff'' s right of action accrues\ to E. F., for the sum of dollars: Now, therefore, we, E. F. as principal, and M. N. and O. P. as sureties, acknowledge ourselves bound to pay to the sheriff of county the sum of dollars [douhle the amount of the p\irchase-money\ conditioned that the said INJUNCTION. 53 E. F. shall ]iay said purchase-money at the expiration of the time given, to wit, on the day of , A. D. 18 — . E. F. M.N. O. P. Approved this day of , A. D. 18 — . J. D, Sheriff of County. The above bond must be returned with the order and filed with the papers of the cause. If the money is not paid at the expiration of the time given, judg- ment may be entered against all the obligors. R. S. 4888. No. 75. Affidavit for Injunction and Fiat An injunction is granted on application by petition, verified by the affidavit of the petitioner. When the writ is applied for after final hearing, the petition need not, as a general rule, be sworn to. 2 Tex. Civ. Prac, § 908; R. S. 2993. The judge, in granting the writ, indorses on or annexes to the petition his order, directed to the clerk of the proper court. R. S. 2993. He may require notice to be given to the adverse party in such manner as he may direct, and fix a time and place for the hearing of the application; and where the writ is granted after notice, citation to the defendant is not necessary. R. S. 2994, 3005. Order of Judge. The State oe Texas, ] At Chambers, this day of , A. D. County of . f 18—. It is ordered that the clerk of the court of count}^ issue a writ of injunction in all things as prayed for in the Avithin petition [or upon stick terms and under such modijications, liniitations and restrictions as may he spec7fied\ upon the complainant executing to the adverse party a bond, with two or more good and sufficient sure- ties, in the sum of dollars \to he fixed h>j the jiidtje^ douhle the amount of any money judgment or deht the execution or collection of which is sought to he restrained]^ conditioned as the law requires. Witness mv hand this day of , A. D. 18 — . G. H., Judge of Court, County. No. 76. Injunction Bond. In the Court, County. Know all men by these presents, that we, A. B. as principal, and M. N. and O. P. as sureties, do hereby acknowledge ourselves bound 54 INJUNCTION. to pay to C. D. the sum of dollars \ihe amount fixed 'by the order of the judge], conditioned that A. B., plaintiff in said suit, will abide the decision which may be made therein, and pay all sums of money and costs that may be adjudged against him, if the injunc- tion granted in said suit be dissolved, either in whole or in part. AVitness our hands this da\'- of , A. D. 18 — . A. B. M. ]N". O. P. Approved this day of , A. D. 18 — •. W. F., Clerk of Court, County. If the state is complainant, no bond is required. R. S. 2997. No. 77. Writ of Injunction. The State of Texas, To C. D., Greeting: Whereas, A. B. filed his petition in the court of — —county, on the day of — — , A. D. IS — , in a suit numbered on the docket of said court, wherein A. B. is plaintiff and C. D. is de- fendant, alleging [state the nature of the jdoAntiff's application, and the action of ^the judge thereon] ; and whereas the said A. B. has exe- cuted and filed with the clerk of said court a bond in the sum of dollars, payable and conditioned as required by law and the order of the judge:* You are therefore commanded \]iere insert the command to desist and refrain from the commission of the act enjoined, as alleged in the petition, and as modified and restricted by the judge], until the further order of said court,t to be holden within and for the county of , at the court-house thereof in , on the Monday in -^ — , 18 — , being the day of , A. D. 18 — , when and where this writ is returnable. Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in , this day of , A. D. 18—. [Z. ^.] W. F., Clerfc of Court, County. Issued this dav of , A. D. 18 — . W. F., Clerk of Court, County. To Stay Waate. \_As in tlie preceding Form to *, and then proceed:] You are hereby commanded to desist and refrain from felling, cutting down or removing any timber or other trees standing, growing or being in or upon the premises above described; and from committing or doing any other or further waste or spoil in or upon the said prem- INJUNCTION. 55 ises or any part thereof, until the further order of said court, etc. [as in preceding Foriin from f to conclasion.'\ A citation must issue to the defendant as in other cases, if the writ of in- junction does not pertain to a suit pending in the court; but if the writ was issued after notice to the defendant, a citation is not required. R S. 3005. The writ is delivered to the sheriflf or any constable of the county, and a writ must issue to each county in which there is a person to be enjoined. It may be forwarded to other counties by mail. Service is made by delivering a true copy, and the writ must be returned the same as other writs. R S 3000- 3002. No. 78. Application for Attachment for Disoledience of an Injunction. 'Eo. — . V. >- In the Court of County. A. B., plaintiff in the above-entitled cause, being duly sworn, says that heretofore, to wit, on the day of , A. if. 18 — , a writ of injunction issued out of the court of county, directed to C. D., defendant in said cause, commanding him [state the com- onand of the writ\ and that said writ was duly served on the said C. D. on the day of , A. D. 18—; that said C. D. hath hitherto refused, and doth now wholly fail and refuse, to obey the -commands of the said writ, but on the contrary, etc. [state the acts supposed to he in violation of the commands of the W7nt\. A. B. Sworn to and subscribed before me this day of A. D 18—. W. F., Clerk of Court, County. Order of Court or Judge. The State of Texas, ) At Chambers, this day of , A. D. County of . ] IS—. The within affidavit having been read and fully understood, it is ordered that a writ of attachment do issue to the sheriff or anv constable of count}^, requiring him to arrest the said C. D. and have him before me, at chambers [or before the court], at , on the day of , A. D, 18 — , at o'clock — M. G. H., Judge of the Court, County. No. 79. Attachment for Disoheifing an Injunction. The State of Texas, To the Sheriff or any Constable of County, Greeting: You are hereby commanded that you arrest the person of C. D., if to be found within your county, and have him before our 56 IJTJUNCTION — CERTIORARI TO JUSTICES^ COURTS. " court of county [or before the judge], on the day of ^ A. D. 18 — , at o'clock — M., then and there to answer for an alleged contempt in disobeying the commands of a writ of injunc- tion issued out of said court on the day of , A. D. 18 — ,. and served upon said 0. D. on the day of , A. D. 18 — , it being alleged by affidavit filed in this court that he wholly fails and refuses to obey the command of said writ. You are further com- manded to retain him in custody until he shall be discharged by our said court. Herein fail not, but of this writ, and how you have executed the same, make due return. Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in the town of , this day of , A. D. 18 — . [Z. S.-] W. F., Clerk of Court, County. Issued this day of , A. D. 18 — . W. F., Clerk of Court, County. Beturn to the Foregoing Attachment. Came to hand the day of , A. D. 18 — , and executed by arresting the person of the within-named C. D., and I have him now before the court, this day of , A. D. 18 — . J. D., Sheriff of County. On retvirn of the attachment, tlie court or judge hears proof, and if it is found that the party has disobeyed the injunction, directly or indirectly, he will be committed to jail, without bail, until he purges himself of the contempt, in such manner as may be directed. R. S. 3012, 3013. No. 80. Petition for a Certiorari to a Justice of the Peace. The State of Texas, ) County of . f To the Honorable G. H., Judge of the Court of County: Your petitioner, C. D., respectfully represents that E. F., Esq., is a justice of the peace of said county, for precinct JSTo. , and that on the day of « , A. D. 18 — , in a certain cause wherein A. B. Avas plaintiff and your petitioner was defendant, the said E, F.,. Esq., as such justice aforesaid, rendered a judgment against your petitioner, and in favor of the said A. B., for the sum of ■' dol- lars and costs of suit, on the following alleged cause of action, to wit [state briefly the nature of the action']. And for ground of complaint your petitioner states that the said justice of the peace was wholly without jurisdiction to render said CERTIORARI TO JLSTICEs' COURTS. 5T judgment [state the facts shoioing a want of j urlsdiction. See 2 Tex. Civ. Prac, § 11 IS]. [If injustice is the (jround of complaint., state the substance of thr evidence offered', that no other evidence was offered; and state such facts as will shovj, vrith reasonable certainty., that the petitioner has rights., or a valid defense^ of which he has been deprived by the erro- neous action of the court, or that without fault or negligence on his part he was unable to present his defense. See 2 Tex. Civ. Prac, §§ IIU, 1115.-] Wherefore, petitioner prays for a writ of certiorari to the said E. F., Esq., and for a citation to the said A. B., and for such further proceedings herein as the law directs. C. D. C. D., being duly sworn, says that the matters set forth in the foregoing petition are true. C. D. Sworn to and subscribed before me this day of , A. D. 18—. AV. F., Clerk of Court, County. The affidavit may be made by the petitioner, or by some person for him hav- ing knowledge of the facts. R. S. 344. A writ issued without the order of the judge is void. 2 Tex.'Civ. Prac, § 1110. For additional forms and suggestions, see Tex. PI. & Forms, ^§ 210-215. Order of Judge. The State of Texas, ) j^ ^ ^ ^^ (.^^^^^^ County of . j -^ The within petition having been presented in open court [or to me at chambers']., and having been read and fully understood, it is ordered that a writ of certiorari do issue according to law, and pur- suant to the prayer of the petition, upon the execution of a bond by the petitioner in the sum of dollars. G. H., Judge of Court, County. No. 81. JBo«^ for Certiorari to a Justice's Court. The State of Texas, ) County of . \ Whereas, on the day of , A. D. 18 — , A. B. recovered in the justice's court for precinct Iso. , in said county, a judg- ment against C. D. for the sum of dollars, and the said C. I>. has obtained from the court of county a writ of certi- orar'i to said justice's court to remove said cause to our said court in and for said county: Now, therefore, we, C. D. as princi- ])al, and M. N. and O. P. as sureties, acknowledge ourselves bound to pa}' to said A. B. the sum of -dollars [the amount directed- by the oixler]., conditioned that the said C. D. will perform the judg- 58 CERTIOKAEI TO JUSTICES' COUKTS. merit of the court of county, if the same shall be against him. Witness our hands this day of , A. D. 18 — . C. D. M. K O. P. Approved this day of , A. D. 18—. W. R, Clerk of Court, County. The bond and petition, and the order of the judge when made in vacation, must be filed with the clerk of the court. R. S. 348. No. 82. Writ of Certiorari to Justice's Court. The State of Texas, To the Sheriff or any Constable of County ^ Greeting: Whereas, on the day of , A. D. 18 — , A. B, recovered in the justice's court for precinct !N"o. , in said county of , a judgment against C. D. for the sum of dollars and costs of suit; and whereas the said C. D. has obtained from the Honorable , judge of the court of county, an order for a writ of certiorari to remove said cause to the court of said county, the said C. D. having given bond as required by law and the order of the judge: You will therefore serve E. F., Esq., who is the justice of the peace of said precinct, with a copy of this writ, Tv^hereby he is commanded to make and certify a copy of the en- tries in the cause on his docket, and transmit the same, with the papers of said cause in his possession, together with a certified copy of the bill of costs taken from his fee book, to the court of county, on or before the first day of the next term thereof, to be holden within and for the county of — ■ — , at the court-house in , on the Monday in next, being the day of , A. D. 18—. Herein fail not, but have you then and there before said court this writ, with your return thereon, showing how you have exe- cuted the same. Witness , clerk of the court of county. Given under my hand and the seal of said court, at oflSce in the town of , this day of , A. D. 18 — . [Z. ^.] W. F., Clerk of Court, County. Issued this dav of , A. D. 18 — . W. F., Clerk of Court, County. No special provision is made as to tlie mode of service of the writ. If there is not time to make out and file the transcript and papers at the next •term, they may be filed at the next succeeding term thereafter. At the first term to which the writ is returnable the adverse party may move to dismiss for AKBITRATION AND AWARD. 59 want of sufficient cause appearing in the affidavit, oi- for want of a sufficient bond. 2 Tex. Civ. Prac, ^j^ 1117, 1118; R. S. 34.3. 350. 353. A supersedeas clause in the writ is not necessary, as it is made the duty of the justice to stay further proceedings on the judgment upon service of the writ. R. S. 350. When the writ is issued, the clerk must forthwith issue a citation for the adverse party, as in ordinary cases. R. S. 351. No. 83. Submission to Arbitration After Commencement of Suit. The State of Texas, ) County of . f Whereas a controversy is now pendino; between A. B. as ])laint- iff and C. I), as defendant, in relation to the price to be paid by the said C. D. to said A. B. for hibor and services rendered by the said A. B. for and in behalf of the said C. D., and at his special instance and request, in purchasing cotton for the said C. D. and forwarding the same to him from the town of , during the month of , A. D. 18 — , for which services the said A. B. claims the sum of dol- lars: Now, therefore, we, A. B. as plaintiff and C. D. as defendant, do hereby submit said controversy, and all matters therewith con- nected, to the arbitration of E. F., chosen by the said A. B., and G. H., chosen by the said C. D., in accordance with the provisions of the statute in such case made and provided. And the parties hereto respectively reserve the right of appeal from the decision of said arbitrators. "Witness our hands this day of , A. D. 18 — . A. B. CD. The above must be filed with the papers of the cause; and, if filed during tho sitting of the court, an order should he made for referring the cause. 1 Tex. Civ. Prac, g 747. If there is no suit pending, the agreement must be filed in the court of the county having jurisdiction of tlie amount in controversy or matter in dispute. The clerk will designate a day for the hearing, not less than two days after filing the agreement, and will issue process for witnesses. On the as- sembling of the arbitrators the clerk will administer to them the statutory oath, and will swear the witnesses. See 1 Tex. Civ. Prac, ^^ 746 et seq.; R. S. 47-53. The statute prescribes the qualifications of the arbitrators. R. S. 48; 1 Tex. Civ. Prac, § 747. No. 84. Oath of Arhitrators. You do solemnly swear [or cfjfirm] that you will fairly and im- partially decide the matter in dispute between A. B., the plaintiff, and C. D., the defendant, accortling to the evidence adduced and the law and equity applicable to the facts proved, so help you God. 00 ARBITKATION AND AWARD ACCOUNTS. No. 85. Aivard of Arbitrators. A. B. I c. b. f The undersigned arbitrators, selected by the above-named par- ties in their agreement dated on the day of , A. D. 18 — , and filed in the court of county on the day of , A. D. 18 — , having, on the day of • , A. D. 18 — , the day assigned by the clerk of said court for the trial of said controversy, been duly sworn, and having heard the allegations and proofs of the parties, do decide that the services of the said A. B. for the month of , A. D. 18 — , are worth the sum of dollars, and that he ought to recover from the said C. D. the said sum and all costs in this behalf expended. "Witness our hands this dav of , A. D. 18 — . E. F. G. H. The award must be filed with the clerk, and the statute provides that at the succeeding term it shall be entered and recorded as the judgment of the court,^ and that execution may issue as on ordinary judgments. R. S. 54. The prac- tice seems to be to enter judgment in due form on the award. See 1 Tex. Civ. Prac. § 751; also Form No. \0S, post. As to procedure in case of an appeal, see 1 Tex. Civ. Prac, § 753. Arbitra- tion at common law, see 1 Tex. Civ. Px-ac, § 757. No. 86. Affidavit to an Account. The State of Texas, Count}" of . Before me [na?ne and style of office], in and for the said county of , on this day personally appeared , who, being duly sworn, states on oath that the foregoing \or within, or an- nexed] account in favor of ■ against , for the sum of dollars, is, within the knowledge of affiant, just and true; that it is due, and that all just and law^ful offsets, payments and credits have been allowed. {Signature of affiant.] Sworn to and subscribed before me this day of , A. D. 18—. "Witness my hand and seal of office, the day and date above writ- ten. [Z. S.] . {Style of office.] The sworn account is prima facie evidence unless a counter-affidavit is filed. See 1 Tex. Civ. Prac, § 488; R S. 2323. JLDCiMKNT.S. CI No. 87. Judgment Overruling Exception to the Petition When There is a Plea Filed A. B. ) No. — . V. [ ss. clay of , A. D. IS—. CD. ) This day came the parties by their attorneys, and then came on •to be heard the exception to the plaintiff's petition [stating it to he to the original., amended., or supplemental p/etition, as the case may he] ; and the argument of counsel tliereon being heard, it is tlie opinion of the court that the law is for the plaintiff.-' It is there- fore considered by tlie court that the exception be overruled, and that the plaintiff' recover of the defendant the costs of said excep- tion, for which he mav have his execution. No. 88. Judgment Overruling Exception to the Petition Where There is No Plea Filed, hut Leave to Amend is Given. A. B. ) No. — . V. - ss. day of , A. D. 18 — . CD.) [Commencevient as in Form No. 87 to''', and contimie:] And the defenchnit now here prays the court for leave to file his amended answer, which is accordingly granted. It is therefore considered by the court that the exception be overruled, and that the plaintiff' recover of the defendant the costs of said exception, for which he may have his execution. No. 89. Judgment Overruling F.vception to the Petition Where There is JS'o Plea Filed and No Amendment Made. day of , A. D. 18—. This day came the parties by their attorneys, and then came on to be heard the defendant's exception to the plaintiff's original [or amended, etc.] petition ; and the argument of counsel fhereon being heard, it is the opinion of the court that the law is for the plaintiff. It is therefore considered by the court that the exception be over- ruled, and that the plaintiff recover against the said defendant his the court that the law is for the plaintiff. It is therefore consid- ered by the court that the exce])tion bo sustained, and that the de- fendant do answer further;* and that the \)\iiintifl [naming him] recover of the defendant [naming him] the costs of said exception, for which he may have his execution. No. 93. Judgment Sustaining Uxception to Answer Where Defendant Elects to Abide by His Pleadings. A. B. ) No. — . V. V ss. day of , A. D. 18—. CD.) [Commencement as in Form iVb. 92 to *, and continue:] And the said defendant now here refuses to answer further, but elects to abide b}'" his said pleadings. It is therefore considered by the court that the plaintiff [namliig him] recover against the defend- ant [naming him] his damages by occasion of the premises. [When the cause of action is liquidated^ ^proceed as in Form No. 96 from *.] No. 94. Judgment of Nonsuit. No. — . v. J- ss. day of , A. D. 18- A. B. ) CD.) This day came the parties by their attorneys, and the plaintiff says he will not further prosecute his said suit.* It is therefore con- sidered by the court that the plaintiff [naming him] take nothing by his suit, and that the defendant [naming him] go hence without day, and that he have and recover of the plaintiff his costs in this behalf expended, and that he have his execution. No. 95. Judgment of Nonsuit Wlien Plaintiff Fails to Aj^^ear. day of , A. D. 18—. This day came on to be heard the above-entitled cause, and the said plaintiff having failed to appear and prosecute his said suit [as in preceding Foi'in^from *]. ^64 JUDGMENTS. No. 96. Judgment hy Default and Danuujes Assessed hy the Clerh. A. B. ) Ko. — . V. \ ss. day of , A. D. IS—. C. D. ) This day came the plaintiff by his attorney, and the said defend- ant, though duly cited, having failed to appear and answer in this behalf, but wholly made default, wherefore the said A. B., plaintiff, ought to recover against the said C. D., defendant, his damages by occasion of the premises;* and it appearing to the court that the cause of action is liquidated and proved by an instrument of writ- ing, it is ordered that the clerk do assess the damages sustained by said plaintiif ; and the said clerk now here having assessed the dam- ages aforesaid at the sum of • dollars,t it is therefore con- sidered by the court that the said plaintiff, A. B., do have and recover of the said defendant, 0. T>., the sum of dollars, with interest thereon at the rate of per cent, per annum, together, with his costs in this behalf expended, and that he have his execution. The defendant may demand a jury trial whether the demand be liquidated or unliquidated. R. S. 1384, 1285. See 1 Tex. Civ. Prac, § 455. No. 97. Judgment hy Default, and Writ of Inquiry Atvarded. day of , A. D. 18—. This day came the plaintiff by his attorney, and the said defend- ant, though duly cited, having failed to appear and answer in this behalf, but wholly made default, wherefore the said A. B., plaintiff, ought to recover against the said C. D., defendant, his damages by occasion of the premises; and a jury having been demanded by the plaintiff, it is ordered by the court that the damages sustained by the plaintiff be assessed when the cause is called in its regular order on the docket. As to the right of plaintiff to a jury trial, see 1 Tex. Civ. Prac, § 455. No. 98. Judgment iqmn Writ of Inquiry. day of , A. D. 18—. This day came on to be heard the above-entitled cause upon writ of inquiry heretofore awarded, and the evidence having been heard JUDGMENTS. 65 by the court, etc. {If on a tibial hy jury — and thereupon came a jury of good and lawful men, to wit, E. F. and eleven others, who, being duly impaneled and sworn, returned the following verdict: " AVe, the jury, assess the damages sustained by the plain titf at dollars" ] : It is therefore considered by the court [as in Form No. 96 from f]. No. 99. Judgment lij Di fault, with Writ of Inquiry as to One Befendantj and upon a Verdict as to the Other. A. B. ) j^o. — . V. J- ss. day of , A. D. 18 — . C. D. & E. F. ) This day came the plaintiff and the said C. D. by their attorneys, and the said E. F., though duly cited, having failed to appear and answer in this behalf, but wholly made default, wherefore the said A. B., plaintiff, ought to recover against the said E. F. his damages by occasion of the premises; and thereupon said cause came on for trial, and the evidence having been heard by the court [or there- upon came a jury, as in Form JVo. 98], it is therefore considered, etc. [as in Form JV^o. 96]. No. 100. Judgment of Dismissal as to One Defendant and hy Default against the Other. A. B. ) jN'o. — . V. y ss. day of , A. D. 18—. C. D. & E. F. ) This day came the plaintiff by his attorney, and it appearing to the court that tlie citation, issued to the defendant C. D. has been returned not served, the plaintiff says he will no further prosecute his said suit against the said defendant. It is therefore considered by the court that the plaintiff' take nothing by his suit against the defendant C. D., and that the said C. D. recover of the plaintiff A. B. all costs in this behalf expended, for which he may have his execution; and the said defendant E. F., though duly cited, -having failed to appear -and answer in this behalf, and it appearing to the court that the cause of action is liquidated and proved by an instru- ment in writing, it is ordered that the clerk do assess the damages sustamed by said plaintiff"; and the said clerk now here having assessed the damages aforesaid at the sum of dollars, it is therefore considered [as in Form No. 101, from *j. C6 JUDGMENTS. No. 101. J\i(lgmentl)]f Defanlt against One of Several Defendants, and against the Plaintiff as to the Other Defendant. A. B. ) 1^0. — . V. V ss. day of , A. D. 18 — . C. D. &E. R ) This day came the plaintiff and the said C. D. by their attor- neys, and the said E, F., though duly cited, having failed to appear and answer in this behalf, but wholly made default, wherefore the said plaintiff ought to recover against the said E. F. his damages by occasion of the premises; and thereupon came a jury of good and lawful men, to wit, G. H. and eleven others, who, being duly impaneled and sworn, returned the following verdict: "We, the jury, find for the defendant C. D. upon the issue joined between the parties, and assess the damages against the defendant E. F. at the sum of dollars." * It is therefore considered by the court that the defendant C. D. go hence without day, and that he re- cover of the plaintiff his costs in this behalf expended, and that he have his execution; and that the plaintiff have and recover of the defendant E. F. the sum of dollars, with interest thereon at the rate of per cent, per annum, together with his costs in this behalf expended, and that he have his execution. No. 102. Judgment hy Confession upon Appearance Without Process. day of , A. D. 18—. This day came the plaintiff by attorney, and the defendant in his own proper person comes and says that he cannot deny the ac- tion of the said A. B., plaintiff, nor but that he is justly indebted to him in the sum of dollars.* It is therefore considered by the court that the plaintiff, A. B., do have and recover of the said defendant, C. D., tne sum of dollars, with interest thereon at the rate of per cent, per annum, together with his costs in this behalf expended, and that he have his execution. Any person indebted, or against whom a cause of action exists, may, without process, appear, in person or by attorney, and confess judgment in open court; but in such case a petition must be filed, and the justness of the debt or cause of action must be sworn to by the person in whose favor the judgment is con- fessed, E. S. 1348. When the judgment is confessed by attorney, the power of attorney must be filed, and a recital of its contents nmst be made in the judgment. The power of attorney or other instrument autliorizing the judgment must be executed after the suit is brought; and the judgment cannot be authorized b}- the con- tract or instrunient sued on. R. S. 1849. The amount for which judgment may be entered should be agreed upon. 1 Tex. Civ. Prac, §§ 644-646. JUDGMENTS. 67 No. 103. Poiver of Attorney to Confess Judgment. The State of Texas, ) County of . j Know all men by these presents that I, C. D., do by these pres- ents appoint E. F. my true and lawful attorney, for me and in my name to confess judgment for the sum of dollars, in a certain suit brought by A. B. against me, the said C. D., in the court of county, state of Texas, on a certain promissory note exe- cuted by me to the said A. B., for the sum of dollars, dated the day of , A. D. 18 — , and maturing months from date [or make such descrijytion as will identify the suit]. Witness my hand this day of , A. D. 18 — . Signed and delivered in presence of [Two witnesses.] CD. The above must be executed after suit brought, must be filed in court, and its contents must be recited in the judgment. R. S. 1350. No. 104. Confession of Judgment hy Attorney in Fact. A. B. ) l^o. — . V. } ss. day of , A. D. 18—. CD.) This day came the plaintiff by his attorney, and the defendant by his attorney in fact, E. F., ancl the power of attorney being duly filed in court, by which it appears that the said E, F. is appointed attorney in fact of the said C. D., defendant, for him, the said C D., and in his name to confess judgment in this action in favor of the said A. B., plaintiff, for the sum of dollars, and it appearing from the plaintiff's petition heretofore filed, -and duly verified by affidavit, that tlie aUeged cause of action is just, it is therefore con- sidered by the court that the plaintiff, A. B., do have and recover of the said defendant, C D., the sum of dollars, with interest thereon at the rate of per cent, per annum, together with his costs in this behalf expended, and that he have his execution. No. 105. Judgment hy Nil Dicit. A. B. ) No. — . V. V ss. day of , A. D. 18—. CD.) This day came the parties by tlieir attorneys, and the defendant withdraws the answer by him heretofore filed, and says nothing in 68 JUDGMENTS. bar of the plaintiff's action; wherefore the said A. B., phiintiff, ought to recover against the said C. D., defendant, his damages by occasion of the premises; and it appearing to the court that the cause of action is liquidated, etc. ^as in Form JVo. 96 from *]. See 1 Tex. Civ. Prac, §§ 438, 439. No. 106. Judgment for the Plaintiff tijpon Verdict of Jury. A. B. ) Ko. — . V. y ss. day of , A. D. 18—. CD.) This day came the parties by their attorneys, and thereupon came a jury of good and lawful men, who, being duly impaneled and sworn, upon their oaths do say that they find for the plaintiff, and assess his damages at the sum of dollars. It is therefore considered [as in Form JS^o. 96 from f]. No. 107. Judgment for the Plaintiffs the Case Being Tried hy the Court ;N"o. — . V. y ss. day of , A. D. 18—. This day came the parties by their attorneys, and submit the matter in controversy, as well of fact as of law, to the court; and the evidence and the argument of counsel having been heard and fully understood, it is considered by the court [as in Form No. 96 from f]. No. 108. : Judgment for the Plaintiff on the Aivard of Arbitrators. A. B. ) :No. — . V. \ ss. day of , A. D. 18—. This day came the parties by their attorneys, and it appearing to the court that this cause has been duly referred, according to the statute in such case made and provided, to [mention names of arhitrators\ to hear and determine, and that the report of said ar- bitrators has been filed, whereby they award as follows, viz. : , it is therefore considered by the court [as in Form No. 96 from, f , followirig the award of the a7'l>itrators\. If the costs are not awarded by the arbitrators, they must be taxed equally against the parties. The award is filed witli the clerk, and judgment is en- tered at tJie next suceedin^' term. R. S. 54, 58; 2 Tex. Civ. Prac, ^ 751. See Form No. 85, su\)va. JUDGMENTS. 69 No. 109. Judgment for the Plaintiff for the Eecovery of Si)ecific Property. A. B. ) No. — . V. \ ss. clay of , A. D. IS — . CD. j This day came the parties by their attorneys, and thereupon came a jury of good and lawful men, who, beinij: duly impaneled and sworn, upon their oaths do say that they find for the plaintiff, and that the defendant does detain [Jiere insert a descriptioii of the propert]l\ as in the plaintiff's petition alleged ;. and they assess the plaintiff's damages, by reason thereof, at the sum of dollars, and they assess the value of said \]tere insert the value of each specijid aj'ticle] at dollars. It is therefore considered by the court that the plaintiff, A. 13., recover of the defendant, C !)., the [here insert description of proper ty\ described in the plaintiff's petition, and the sum of dollars damages, and his costs by him in this behalf expended.* And if said [Jiere insert description of property'\ cannot be had, it is considered by the court that the plaintiff, A. ]3., recover of the defendant, C. D., said sum of dollars, the value so assessed, in addition to the damages and costs aforesaid, and that he have execution. [If the property has heen replevied hy the defendant, proceed from, - as follows: And if said [here insert a description of the propertrj\ cannot be had, it is considered by the court that the plaintiff, A. B., recover, jointly and severally, of the defendant, C. D., and and , sureties on his replevy bond, filed in this cause on the day of , A. D. IS — , the said sum of dollars, the value so assessed, and the further sum of dollars, the value of the hire of said property so assessed by the jury, and that he have his execution.] When the property consists of more than one article, the value of each specific article must be sejjarately assessed. No. 110. Judgment for the Defendant in Suit for the Eecovery of Specific Property, the Same Having Been Peplevied hy the Plaintiff. dav of , A. D. 18—. This day came the parties by their attorne3^s, and thereupon came a jury of good and lawful men, who, being duly impaneled and sworn, upon their oaths do say that they find for the defendant, and that they assess the value of said [describe the property] at dollars, and the value of the hire from the day of , A. D. 18 — [the date of the replevy hond], at dollars. " It is therefore 70 JUDGMENTS. considered by the court that the plaintiff take nothing by his suit, and that the defendant C. D. recover of the plaintiff A. B. and and , sureties, as hereafter stated, dollars, the value of said property as aforesaid, and the further sum of dollars damages. And it further appearing that said property, to wit [describe it], was, on the day of , A. D. 18 — , delivered by the sheriff of county to the plaintiff, who thereupon exe- cuted a replevy bond with and as sureties, it is ordered that a writ issue commanding the proper officer to restore said ])roperty to the defendant, and if said property is so restored the judgment herein rendered for its value shall stand discharged; but if said property cannot be found, execution shall issue against the plaintiff' and and , sureties as aforesaid, for the sum of dollars, the value so assessed, in addition to the damages and costs aforesaid, for which the defendant C. D. shall have his execution. No. 111. Judgment for the Recovery of Land. No. — . V. \ ss. day of , A. D. 18—. This day came the parties by their attorne3^s, and thereupon came a jury of good and lawful men, who, being duly impaneled and sworn, upon their oaths do say that they find for the plaintiff', and assess his damages at the sum of dollars. It is therefore considered by the court that the plaintiff A. B. recover of the de- fendant C. D. the premises described and bounded as follows [here describe the 'prendses\ for which he may have his writ of possession, and also the sum of dollars, his damages aforesaid, and his costs in this behalf expended, for which he may have his execution. No. 112. Judgment Foreclosing Lien. day of , A. D. 18—. This day came the parties by tiieir attorneys, and thereupon came a jury of good and lawful men, to wit, E. F. and eleven oth- ers, who, being duly elected, tried and sworn, upon their oaths do say : " We find for the plaintiff, and that the facts stated in his peti- tion are true, and assess the damages at dollars.'" ^ G. H., Foreman. And it appearing to the court, from the finding of the jury afore- said, that the defendant is indebted to the plaintiff in the sum of dollars, and that the note sued on bears interest at the rate JUDGMENTS. 71 ot per cent, per annum; and it further appearing to the court that said note was executed on the day of , A. D. 18 — , to secure the payment of the purchase-money for the following de- scribed tract of land, to wit \Jiere give descriptiou\ it is there- fore considered by the court that the plaintiff A, B. do have and recover of the said defendant C. D. said sum of dollars, prin- cipal and interest, with interest thereon from this date at the rate of per cent, per annum, together with his costs in this behalf ■expended. And it is ordered, adjudged and decreed by the court that the lien as it existed on the day of , A. D. iS — , upon the above- described tract of land be and the same is hereby foreclosed ; and that the clerk of this court do issue an order of sale, directed to the sheriff or any constable of ■ county, commanding him to seize and sell the above-described tract of land as under execution; and that he apply the proceeds thereof to the payment and satisfaction of the said sum of dollars, together with all interest that may be due thereon, and the costs of this suit. And if the said land shall sell for more than sufficient to pay off and satisfy said sums of money, then the said officer is hereby directed to pay over the ex- •cess to the defendant; but if the said land shall not sell for enough to pay off and satisf}^ this judgment, then said officer shall make the balance due as under execution. And it is further ordered that the said officer place the purchaser of said property in possession thereof within thirty days after the receding Forvi to *.] And afterwards, to wit, on the day of , A. D. 18 — y said filed his petition and bond for a writ of error, in words and figures as follows: {Copy the petition and bond.'] And afterwards, to wit, on the day of , A. D. 18 — , the APPEALS AND AVKITS OK KKKOK. 7( clerk of said court issued a citation in error, which with the return thereon is in words and figures as follows: \_Copij citation ami re- turn and all indorsements.^ The State of Texas, ) Oount}^ of . i I, , clerk of the court of county, do hereby certify that the forcigoing pages contain a true and correct copy of the judgment, })etition and bond for writ of error, and cita- tion in error and return thereon, in a certain cause determined in said court, numbered on the docket thereof, wherein — — ■ is plaintiff and is defendant. Witness mv hand and the seal of said court this day of , A. D. IS—. [Z. s.-\ ^Y. F., Clerk of Court, County. Indorse as indicated below. No. 121. Indorsements on Certificate for Affirmance. A. B., Appellant [or Plaintiff in Error\ \ No. — . V. V C. D., Appellee {or Defendant in Error']. ) From County. Applied for by on the day of , A. D. 18 — , and delivered to on the day of , A. D. 18 — . ^\. F., Clerk of Court, County. See Rule 98 for district and county courts; 2 Tex. Civ. Prac, § 1148. As to form and arrangement of transcript, see 2 Tex, Civ. Prac, §§ 1144, 1145. For suggestions for obtaining a certiorari to perfect the record, see 2 Tex. Civ. Prac, ^ 1186. 78 EXECUTIONS AND OKDERS OF SALE, 5S5 O ?: of w eS . O S i tS r"* .- o 9 o fcf^o?^^ eg 5 .9 5 2, ■■a •-5 a '1 o2; •^•2s, ;? (U- : ^ - H ceo cSS m li 03 a So ■M.2 '-' ^-1 fl K g :3 C Q; r/} o i w a ? +J G* - o a>' ^■°^ a" a icjiH Sao H>^2 f^ fej : Ba hc.9 t/: o OJ ►Sow e^s. s T: 5i n t4 -2 Cj'C c3 S a> i-KiHSW S " O si c^ Of!^ 0,. - 002? ^i^ EXECLTIONS AND ORDERS OF SALE. Ti> The several items of the bill of costs to be collected must be indorsed on every execution. Costs accruing on an appeal or writ of error are collected on an execution issued from the appellate court. R. S. 984, 1036; 1 Tex. Civ. Prac, § 742. When an alias or pluries execution is issued, it mu«t show on its face the number of previous executions which have been issued on the judgment. R S. 2338. The execution must be made returnable on the first day of the next term of the court, or in thirty, sixty or ninety days, if so directed by the plaintiff, his agent or attorne}^ R. S. 2338. As to the county to which executions may issue, procedure on death of a party, see 2 Tex. Civ. Prac, § 1239 et seq. As to execution against principal and surety, see 2 Tex. Civ, Prac. g 1016. For forms in designating homestead, see Sayles' Laws of Business, §«^ 314-316. See, also, 2 Tex. Civ. Prac, gg 1248, 1249. No. 123. Return upon an ExeGution of Sale of Personal Propert'tf. Came to hand the day of , A. D. 18 — , at o'clock — . M., and executed on the day of , A. D. 18 — , at — . M., by taking into my possession the following described per- sonal property of the defendant, pointed out by said defendant, viz.: [^Insert a description of the property i\ And afterwards, on the day of , 18 — , advertised the same for sale at , on the day of , 18 — , by written advertisement posted for ten days successively at three public places in the county of , one of which was at the court-house door of said county, and one at , the place of sale. And on said day of , 18 — , at , pursuant to said advertisement, the said property being then and there present and subject to the view of the persons at- tending the sale, I sold the said property to , to whom the same was struck otf for the sum of dollars, that being the highest sum bid for the same. And the said having paid the sum so bid by him, the said property was delivered into his pos- session. J. D., Sheriff of County. No. 124. Return upon an Execution of Sale of Real Estate. Came to hand the day of , A. D. 18 — , at o'clock — . M., and afterward, to wit, on the day of , A. D. 18 — ,. at o'clock — . M., being unable to find any personal property or uncultivated lands in ray county belonging to the defendant, and the defendant neglecting to point out other property, I levied the within writ on the following: described cultivated land belong- ^0 EXPXUTIOKS AKD ORDERS OF SALE. ino' to the defendant : [Insej^f a (lescription?^ And afterwards, on the day of , A. D. 18 — , advertised the same for sale at the court-house door of the county of : , on the day of , A. I). 18 — , being the first Tuesday of said month, by written ad- vertisement posted for twenty days successively next before the said day of sale, at three public places in the county of , one of which was at the door of the court-bouse of said county; and also delivered to the defendant a copy of said notice \or^ if he is a non-resident of the county, that a copy of the notice was mailed to Jiim, directed to him at his postoffice], and mailed a copy of the same to , his attorney of record. \_If the defendant reqtiests that notice of sale he published: I also caused a notice of said sale to be published in the ,a newspaper published in the county of , for three consecutive weeks before said sale, to wit, on the , and days of , A. D. 18 — , and I herewith return a printed copy of said notice.] And on said. day of , A. D. IS — , between the hours of 10 o'clock A. M. and 4 o'clock P. M., at the court-house door of said county, I sold said property at public sale to , to whom the same was struck off for "the sum of dollars, that being the highest secure bid for the same; and the said having paid the sum so bid by him, I executed to him a deed for said land. ^ J. D., Sheriff of County. The statute provides for the sale of land in separate lots or tracts. E. S. 2362- 2364. If the property does not sell for enough to satisfy the execution, the offi- cer proceeds anew. R. S. 2374. If a bidder refuses to comply with his bid, the officer may sell the property again, on the same day if there be sufficient time; if not, he must re-advertise. R. S. 2382. Notice is to be published, at the request of the defendant, if there be a news- paper in the county that will publish it for the compensation allowed. The contents of the notice are prescribed by statute. R. S. 2366. The statute does not direct the manner of making the return nor what facts shall be stated. See 3 Tex. Civ. Prac, §§ 1275, 1276. No. 125. Notice of Sale of Beat Estate under Execution. Execution Sale, ^™ oTnt^^rf — 1 ^"^ *^^ ^''''^^ ""^ County. A. B. and C. D., partners, plaintiffs, against E. F., defendant. By virtue of an execution issued out of the court of county, on a judgment rendered in said court on the day of , A. I). 18 — , in favor of tlie said A. B. and C. D. and against the said E. F., I did, on the day of , A. D. IS—, at EXECUTIONS AND ORDEUS OF SALE. 81 o'clock — . M., levy upon the following described tracts and parcels of land situate in the county of , state of Texas, and belonging to the said E. F., to wit: {rlescr'ihe the land, giving the numler of acres, original survey, locality in the county, and the name hy which the land is most generally known j if imder an order of sale on the foreclosure of a mortgage or other lien, describe the property as it is described in the judgment and order of sal e^^ ; and on the day of , A. D. 18 — , being the first Tuesday of said month, between the hours of 10 o'clock A. M. and 4 o'clock P. M. on said day, at the court-house door of said county, I will offer for sale and sell at public auction, for cash, all the right, title and interest of the said E. F. in and to said property. Dated at this day of , A. D. 18 — . J. D., Sheriff of County. The description given in the above form is that prescribed by the statute where the notice is published. It would probably be suflBcient in any case. R. S. 2366. The purpose of the advertisement is to give notice of the time and place of sale, and also to afford persons desiring to purchase an opportunity to examine the title, and to determine for themselves what land or interest in land they can acquire by a purchase. 2 Tex. Civ. Prac, § 1283. The notice, written or printed, must be posted at three public places in the county, one at the court-house door (at the usual place for posting notices. 2 Tex. Civ. Prac, § 1283), for at least twenty days successively next before the (lay of sale; a copy must be delivered to the defendant, if lie resides iu the county, and if not it must be mailed to him, and a similar notice must be mailed to his attorney of record. The notice must also be published, if requested by defendant. R. S. 2366. As to what is meant by "the court-house door," see 2 Tex. Civ. Prac, §§ 1280, 1283. The above form may be varied for a sale of personal property. No. 126. Delivery Bond ly Defendant in Execution. A. B. ) Xo. — . V. I CD. ) Whereas, by virtue of an execution issued out of the court of county, on the — - day of , A. D. 18 — , upon a certain judgment rendered in said court on the day of , A. D. 18 — , in favor of A. B., plaintiff, against C. D., defendant, , the sheriff of said county of , did, on the day of A. D. 18 — , seize and take possession of the following described ])i'0]ierty of the said defendant, viz. [descrihe the proj^ertyY, and all of said property, having been appraised by the said sheriff at dollars, was returned to the said C. D. at his request: Xow, there- lore, we, C. D. as principal, and M. X. and O. F. as sureties, ac- knowledge ourselves bound to the said A. B., to the effect that said 6 ^.^ 82 JiXECLTIOXS AND OEDERS OF SALE. property shall be delivered to said , sheriff as aforesaid, at , on the day of , A. D. 18 — , to be sold according- to law, or, in default thereof, that the said C. D. will pay to said , sheriff as aforesaid, the sum of dollars, which is the fair value of said property. Witness our hands this day of ^ A. D. 18 — . C. D. M. K O. P. Approved this day of , A. D. 18 — , J. D., Sheriff of County. If the property is not delivered, nor payment made, according to the terms of the above bond, the officer will return the bond forthwith, indorsed "for- feited," to the clerk of the court; and if the judgment remain unsatisfied, in whole or in part, execution will issue against the principal and sureties for the amount due, not exceeding the stipulated value of the property. The clerk must indorse on the execution that no delivery bond is to be taken. R. S. 3359. See Form 130. No. 127. JExecution and Order of Sale. The State of Texas, To the Sheriff or any Constable of County^ Greeting: Whereas, on the da}^ of , A. D, 18 — , A. B. recovered a judgment in the court of county against C. D., for the sum of dollars, with interest thereon from the day of , 18 — , at per cent, per annum, and all costs of suit, with a foreclosure of a lien on the following described property, viz. {describe the property^ as said lien existed on the day of , 18 — , and ordering a sale of said property as under execution to satisfy said judgment: Now, therefore, you are hereby commanded that you seize the above-described property and sell the same as under execution; and if the said property cannot be found, or if the proceeds of a sale thereof be insufficient to satisfy said judgment, interest and costs of suit, and the further costs of executing this Avrit, then of the goods and chattels, lands and tenements of the said C. D., you will cause to be made said sum of money, or any balance remain- ing unpaid, as in case of ordinary executions. Herein fail not, and have you the said moneys, together with this writ, showing how you have executed the same, before said court, at the court-house thereof in the town of , on the first day of the next term thereof, being the day of , A. D. 18 — [or in thirty, sixty or ninety days, if so directed hy the plaintiff, his agent or attorney}. EXECUTIONS AND ORDERS OF SALE. OO Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in the town of , this the dav of , A. T>. 18 — . [Z. S.] ^ W. R, Clerk of Court, County. Issued this day of , A. D. 18 — . W. F., Clerk of Court, County. The above is based on articles 1340 and 2338 of the Revised Statutes. The officer is not required to produce the money in court. He must pay it to the person entitled at the earliest opportunity. R. S. 2384, 2385. Tlie several items of the bill of costs to be collected must be indorsed on the writ in intelligible words and figures. R. S. 2338. See Form No. 121. No. 128. Execution for the Delivery of Property. The State of Texas, To the Sheriff or any Constable of County ^ Greeting: Whereas, on the day of , A. D. IS — , A. B. recovered a judgment in the court of county against C. D. for the title and possession of the following described property, viz. [here insert a particular description of the proper ty\ and for the sura of dollars, with interest thereon from the day of , A. D. 18 — , at per cent, per annum, and all costs of suit, as of record is manifest: Therefore you are hereby commanded to seize the above de- scribed property, and deliver possession of the same to the said A. B., and of the goods and chattels, lands and tenements of the said C. D. cause to be made* said sum of dollars, and interest as aforesaid, together with the sum of dollars, costs adjudged against the said C. D., and also the further costs of executing this writ. Herein fail not, and have you the said moneys, together with this writ, before said court, at the court-house thereof in the town of , on the Mondav in next, being the day of , A. D. IS—. AVitness , clerk of the court of count3\ Given under my hand and the seal of said court, at office in the town of , this the day of , A. D. 18 — . [Z. s:\ w. R, Clerk of Court, County. Issued this day of , A. D. 18 — . W. R, Clerk of Court, County. Where it is shown by the pleadings and evidence, and the verdict, if any. that the personal property has an especial value to the plaintiff, the court may. by its judgment, award a special writ for the seizure and delivery of sucli prof)- erty to the plaintiff, and may, in addition to the other relief granted, enforce its judgQient by attachment, fine and imprisonment. R. S. 1339. Process which requires only the delivery of specific real or personal property may be issued at the same time to different counties. R. & 2337. 84: EXEOUTIOKS AND ORDERS OF SALE. No. 129. Execution for Personal Property or its Value. The State of Texas, To t/ie Sheriff or any Constable of County^ Greeting: Whereas, on the day of , A. D. 18 — , A. B. recovered a judgment in the court of county, against O. D., for the title and possession of the following described personal property, or its value as hereinafter stated in case delivery cannot be had, viz. \liere msert a particular description and the value of each article of proper ty\ and also for the sum of dollars, with interest thereon from the day of , 18 — , at per cent, per annum, and all costs of suit, as of record is manifest: Therefore you are hereby commanded to seize the above-described property and deliver possession of the same to the said A. B., but in case said property, or any part thereof, cannot be found, so that a delivery thereof cannot be made, then of the goods and chattels, lands and tenements of the said C. D. cause to be made the value thereof, as above specified, and also said sum of dollars [as in preceding Formfron%'^\ No. 130. Execution on Forfeited Delivery Bond. The State of Texas, To the Sheriff or any Constahle of County, Greeting: "Whereas, on the day of , A, D. 18 — , A. B., plaintiff, recovered a judgment in the court of county, against C. D., defendant, for the sum of dollars, with interest thereon from the day of , A. D. 18 — , at per cent, per annum, and all costs of suit, as of record is manifest, upon which there is now due the sum of dollars, and the further sum of dol- lars, costs of suit; and whereas, on the day of , A. D. 18 — , an execution was issued on said judgment, directed to the sheriff or any constable of county, which was returned with the fol- lowing indorsement thereon, viz. : " Came to hand on the day of , A. D. 18 — , at o'clock — . M., and executed on the same day by taking into my possession the following described personal property of the defendant, designated by him to be levied upon, viz. [descrihe the property\ and the defendant having re- quested the return of the property to him, and having tendered to me his bond, with M. N. and O. P., sureties, conditioned for the delivery of said property to me at , on the day of , A, D. i8 — , to be sold according to law, or for the payment to me of the fair value of said property, to wit, the sum of dollars, I returned said property to said defendant on the day of , A. D. 18 — . "- — , Sheriff of County;" and whereas, KXECUTIONS AND ORDERS OF SALE. 85 afterwards, on the clay of , A. D. 18 — , the said sheriff re- turned said bond to the clerk of said court, indorsed "Forfeited:" Now, therefore, you are hereby commanded that of the goods and chattels, lands and tenements of the said C. D., principal debtor, and M. N. and O. P., sureties, you cause to be made the said sum of dollars [the amount of the judgment^ vnth costs, hut not ex- ceeding the stipulated value of the property^ Slg.^ also the further costs of executing this writ. Herein fail not, and have you the said moneys, together with this writ, before said court at the court-house of said county, in the town of , on the Monday in next, being the day of , A. D. 18—. Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in the town of J this the day of , A. D. 18—. [Z. S.-\ W. F., Clerk of Court, County. Issued this day of , A. D. 18 — . W. F., Clerk of Court, County. Indorse on the execution that no delivery bond is to be taken. R. S. 2359. No. 131. Yenditioni Exponas. The State of Texas, To the Sheriff or any Constable of County, Greeting: Whereas, on the day of , A. D. IS — , A. B. recovered a judgment in the court of county, against C. D., for the sura of dollars, with interest thereon from the day of , 18 — , at per cent, per annum, besides the costs in that behalf expended, as of record is manifest. And whereas, , sheriff of county, has, by virtue of an execution issued upon the aforesaid judgment, levied upon certain property of the said C. D., of the description following, to wit: {Ilere describe the prop- erty levied upon'] : Therefore you are hereby commanded that yuu proceed according to law, and sell the above-described property as under execution, and apply the proceeds thereof to the ])ayraent and satisfaction of the aforesaid sum of dollars, with the in- terest due thereon, from the day of , A. D. 18 — , at the rate of per cent, per annum; also, the sum of dollars. for costs of suit, which against the said C. D. were adjudged, together with the further costs of executing this Avrit. Herein fail not, and have you the said moneys, together with this writ, before said court, at the court-house thereof, town, of ', on the Monda}'^ in next. S6 EXECUTIONS AND OKDEES OF SALE. Witness , clerk of the court of county. Given under m}'' hand and the seal of said court, at office in the town of , this the dav of , A. D. 18 — . [Z. S.] " W. F., Clerk of Court, County. Issued this day of , A. D. 18 — . As to when the above writ is authorized, and the proper procedure, see 2 Tex. Civ. Prac, § 1296. No. 132. JExecution iqwn a Judgment Affirmed with Damages. The State of Texas, To the Sheriff or any Constable of Coimiy, Greeting: Whereas, on the day of , A. D. 18 — , A. B. recovered a judgment in the court of county, against C. D., for the sum of ■ dollars, with interest thereon from the day of , 18 — , at per cent, per annum, besides the costs in that behalf expended, as of record is manifest ; and whereas, the judg- ment of our court aforesaid was, on the day of , A. D. 18 — , affirmed in our court of civil appeals for the supreme judicial district [or the supreme court], against the said C. D., and M. N. and O. P., sureties; and whereas, it was adjudged by the said court of civil appeals that the said A. B. do have and recover of the said C. D., M. N. and O. P. the further sum of dollars, by way of per centum damages for delay, as appears from the mandate of said court of civil appeals filed in our said court on the day of , A. D. 18 — : Therefore you are hereby commanded that of the goods and chattels, lands and tenements of the said C. D. and M. N. and O. P., you cause to be made said sum of dollars, with interest thereon at the rate of per cent. per annum, from the — — day of , A. D. 18 — ; also tlie sum of dollars, the damages aforesaid, with interest thereon from the day of , 18 — , together with the sum of dollars, costs of suit, and the further costs of executing this writ. Herein fail not, and have you the said moneys, together Avith this writ, before said court, at the court-house in the town of , on the Monday in ■ next, being the day of , A. JO IS—. Witness , clerk of the court of county. Given under my hand and the seal of said court, at office in the town of , this the day of , A. D. 18 — . (L.S.] W. P., Clerk of Court, County. Issued this day of , A. D. 18 — . As to the rate per centum where damages are allowed on afl&rmance, see R S 1024, 1028. shekiff's deed. 87 No. 133. Sheriff ^s Deed on Scde of Real Estate. The State of Texas, ) County of . \ Know all men by these presents, that whereas, by virtue of a cer- tain execution, issued out of the court of the count}^ of , in favor of A. B. and against C. D., on a certain judgment rendered on the day of , A. D. 18 — , and directed and delivered to me, as sheriff of the county of , commanding me of the goods and chattels, lands and tenements of the said C. D. to make certain moneys in said Avrit specified, I, J. D., sheriff as aforesaid, did upon the day of , A. D. 18 — , levy on and seize all the estate, right, title and interest which the said defendant, on the day of , A. D. 18 — , so had of, in and to the premises hereinafter de- scribed ; and on the first Tuesday of , A. D. 18 — , within the hours prescribed by law, sold said premises at public vendue, in the county of , at the door of the court-house thereof, having first given public notice of the time and place of such sale by causing an ad- vertisement thereof to be posted up at three public places in the county aforesaid, one of which was the court-house of said county, for twenty days jirevious to said sale, and by delivering and mail- ing to the said C. D. and to his attorney of record a copy of said notice as required by law \if the notice was published, state the facts as iti Form No. l:2Jt] ; and whereas, at said sale, the said premises were struck off to John Doe for the sum of dollars, he being the highest bidder therefor, and that being the highest secure bid for the same : Now, therefore, in consideration of the premises aforesaid, and of the payment of the said sum of dollars, the receipt of which is hereby acknowledged, I, J. D., as the sheriff as aforesaid, have sold, and by these ])resents do grant and convey, unto the said John Doe, all the estate, right, title and interest which the said C. D. had, on the day of , A, D. 18 — , or at any time afterwards, of, in and to the following described premises, viz, : [Describe the property.'] To have and to hold the above-described premises unto the said John Doe, his heirs and assigns forever, as fully and as absolutely as I, as sheriff as aforesaid, can convey by virtue of the said writ of execution. In testimony whereof I have hereunto set my hand this day of ,A. D;18— . J. D., Sheriff of County. As to the requisites of a sheriff's deed, especially in the description of the property sold, see 2 Tex. Civ. Prac, g^ 1293, 12'J4. ob SCIKE FACIAS TO REVIVE A JUDGMENT. No. 134. Scire Facias to Bevive a Judgment. The State of Texas, To the Sheriff or any Constable of County ^ Greeting: Whereas, it appears from the records of the court of countv^ that A. B. recovered a judgment in said court on the day of , A. D. 18 — , against C. D., for the sum of dollars, with interest thereon from said date at the rate of per cen- tum per annum, besides the sum of dollars as costs of suit, in an action on a promissory note executed before that time by the said C. D. for the sum of dollars; and vv^hereas, it appears from the records of said court that said judgment remains wholly unsatistied, and that execution has not issued thereon within twelve months after the rendition thereof, and the said A. B. has applied to our said court for a remedy in this behalf: jSTow, therefore, you are hereby commanded that you summon the said C. D. to be and appear before the court of county, to be holden at the court-house.thereof on the Monday in next, being the day of , A. D. 18 — , then and there to show cause, if any he has, why the said A. B. ought not to have his execution against him according to the force, form and effect of the said recovery; and further to do and receive what our said court shall then and there consider of him in this behalf. Herein fail not, and have you this writ before said court, on the said day of , A. D. 18 — , with your return thereon show- ing how you have executed the same. Witness , clerk of the court of county. Given under my hand and the seal of said court, at oflSce in the town of , this day of , A. D. 18 — . [Z. S.] W. F., Clerk of Court, County. Issued this day of , A. D. 18 — . W. F., Clerk of Court, County. Compare article 2326a of the Eevised Statutes of 1895 with article 3361. It seems that if execution issues within twelve months after the rendition of the judgment, a second one may issue at any time within ten years thereafter, and so on, with periods of ten years between executions. R. S. 2326a. If execution has not issued within twelve months after the rendition of the judgment, the judgment may be revived by scire facias or action of debt brought thereon within ten years after the date of the judgment, and not after. R. S. 3361. The meaning of the statute seems to be that, if the judgment becomes dor- mant by failure to issue execution within the first twelve months, it may be revived at any time within ten years; but if it is allowed to become dormant by the lapse of ten years between executions, it cannot be revived. For the proper procedure, see 2 Tex. Civ. Prac, ^^5 1270, 1271. The defendant pleads to the writ any defense he may have to the judgment, such as nul tiel record, payment, release, etc., but not anything which he could have set up as JUDGMENT LIENS ABSTKACJ. 8^ a defense to the original action. An action of debt is recommended as a simpler remedy. The judgment is that the plaintiff have execution. 2 Tex. Civ. Prac, § 1271. See Green's Practice, §§ 1196-1209.; No. 135. Judgment Liens — Abstract of Judgment. The State of Texas, County of . At a term of the court begun and holden at , within and for the county of , by the Hon. , judge thereof, in a cause numbered on the docket of said court, wherein A. B. was plaintiff and C. D. was defendant, a judgment Avas rendered on the day of , A. D. 18 — , in favor of the said A. B. and against the said C. D. for the sum of dollars, with interest thereon at the rate of per cent, per annum from date, and the further sum of dollars, costs of suit; and there still remains due on said judgment the said sum of dollars, with interest and costs, as aforesaid [o?" state the amount remaining due']. I, , clerk of the court of county, Texas, do hereby certify that the above is a true and correct abstract of said judgment as of record in said court. W itness my hand and the seal of said court this da}' of , A. D. 18—. [Z. S.'\ W. F., Clerk of Court, County. As to the requisites of the abstract, the recording and indexing, see 3 Tex. Civ. Prac, ^ 1273. INDEX TO FORMS. The references are to Form numbers "when not otherwise indicated. ABATEMENT OF ACTIONS — suggestion of death, of u sole plaint- iff, 25. may be made by the lieir, 25, note, of a sole defendant, 26. of one of two plaintiffs, 27. of one suing for the u.se of an- other, 28. of sole plaintiff in actions for causing death, 29. marriage of female plaintiff or de- fendant, 30, 31. scire facias to make parties, 32. order to make an administrator a party, 33. ABSTRACT OF JUDGMENT, 135. ACCOUNT — affidavit, 86. AFFIDAVIT — to be admitted to sue as poor per- son, 0. or for appointment of counsel, 10. for citation by publication, 20. in case of unknown heirs, 22. for service of notice of interroga- tories, 39. supporting application for change of venue, 44. counter, on application for a con- tinuance. 47, note. for original attachment, 49. of claimant of property, 65. for writ of sequestration, 67. for injunction, 75. for an attachment for disobeying an injunction, 78. to an account, 86. in lieu of appeal bond, 116. AFFIRMANCE ON CERTIFICATE, 119-121. APPEAL BONDS, 114-116. APPEALS AND WRITS OF ERROR — cost bond, 114. appeal perfected, wiien, 114, note, writ of error, how obtained; super- sedean, 114, note. APPEALS AND WRITS OF ERROR (continued) — svppvsedeaH bond, 11.5. affidavit in lieu of cost bond, 110. citation in error; return, 117. service; alias d^nd piuries, 117, note, writ of supersedeas, 118. certiiicate for affirmance, 119, 120. indorsements on, 121. ARBITRATION — submission; procedure, 83, and note, oath of arbitrators, 84. the award; entering judgment, 85, and note, judgment on award, 108. ATTACHMENT — for a witness, 36. for disobeying an injunction, 78, 79. for delivery of specific property, 128, note. ATTACHMENT, ORIGINAL — affidavit for, 49, and note, bond, 50, and note. form of writ. 51. when issued; how levied; sev- eral may issue, 51, note. ofBcer'.s indorsement and return of levy on personal pi'operty, 51. on real estate; registration of writ, p. 35, and note, report of disposition of personal property after return of writ, p. 35. bond of indemnity, 52. replevy by defendant, 53. application for sale of perishable property, 54, and note, order of sale, 55. officer's return or report of sale, p. 38. judgment for plaintiff, 113. • ATTORNEY — appointment for poor person, 10. or on service by publication, 11. BOND FOR COSTS, 13. affidavit of inability to give, 9. on appeal or writ of error. 114. affidavit in lieu of, 116. 92 INDEX TO FORMS. BOND OF INDEMNITY — on levy of attachment, 52. BONDS — for attachment, 50, and note. in garnishment, 59. of claimant, 66. for writ of sequestration, 68. of purchaser of property seized under writ of sequestration, 74, and note, for injunction, 76. for certiorari, 81. CERTIORARI TO JUSTICES' COURTS — petition for and order of judge, 80. form of bond, 81. bond, petition and order must be filed, 81, note, form of writ; when returnable; supersedeas and citation, 83, and note. CHANGE OF VENUE — consent of parties, 43. application for, 44. supporting affidavit, 44, and note. order for, 45. duty of clerk, 45, note. CITATION BY PUBLICATION — appointment of counsel for defend- ant, 11. affidavit for, 20. in suits against life or health insurance companies, 20, note, in suits for partition, 20, note, form of writ, 21. in suits for partition, 21, note, affidavit for citation to unknown heirs, 22. form of writ, 23. officer's return, 24. citation in error, 117, note. CITATION FOR PERSONAL SERV- ICE— general form, 14. service and return, 14, note. alias and plaries, 14, note. sheriff's indorsement and return, p. 14. where the suit is by or against one in a particular capacity, 15. for a domestic corporation, 16. should name local agent, 16, note. for a foreign corporation, IT". against a life or health insurance company, 17, note. for a city, town or village, 18. against a county, served on county judge, 18, note. against partners, 19. how served, 19, note. CITATION IN ERROR, 117. • CLERK OF COURT — bond of district clerk, 5. jjro tem.. appointment of, 6. bond required, 7. appointment of deputy, 8. CONFESSION OF JUDGMENT, 102- 104. CONTINUANCE — first application, 46. second application, 47. counter-affidavits; admitting facts,. 47, note. order of court, 48. DEFAULT — forms of judgments, 96-101. DELIVERY BOND — by defendant in execution, 126. forfeited; execution on, 130. DEPOSITIONS — notice of filing interrogatories, 37. must be filed; how served, 37, note, may be taken when, 37, note, precept to serve notice of interrog- atories, 38. on a corporation, 38, note, affidavit for service of notice of interrogatories by publica tion, 39. precept to serve notice, 40. officer's return, 40. commission to take testimony, 41. to whom addressed, 41, note, cross-interrogatories, 41, note, instructions to the commissioner, 42. DEPUTY CLERK — appointment. 8. DEPUTY SHERIFF — appointment and bond, 3, 4> DORMANT JUDGMENTS, 134, note. EXECUTIONS AND ORDERS OF SALE — execution for money, 122. general provisions, 122, note, return of sale of personal property, 123. of real estate, 124 procedure on sale of real estate, 124^ note, notice of sale of real estate, 125. delivery bond by defendant, 126. forfeited, execution on, 130. order of sale on foreclosure of lien, 127. for delivery of personal property, 128, and note, for personal property or its value,. 129. INDEX TO FORMS. 93 EXECUTIONS AND ORDERS OF SALE (continued) — venditioni exponas, 131. on judgment affirmed with dam- ages. 182. sheriff's deed, 133. GARNISHMENT — application for writ in aid of an attachment, 56. wliere plaintiff sues for a debt without suing out an attach- ment, 57. after judgment, 58. bond required, when, 59. form of writ, GO. service of writ. fiO. note, replevy bond, Gl. commission to take answer of gai'- nishee. 62. summoning garnishee before commissioner. 63, and note, commissioner's return, p. 44. notice to garnishee that his answer is controverted, 64, and note. GUARDIAN AD LITEM — appointment of, 13. INJUNCTION — application for; order of judge, 75. bond, 76. writ of injunction, 77. disobedience, application for at- tachment, 78. order of court. 78. attachment, 79. , JUDGMENT LIENS — abstract of judgment, 135. JUDGMENTS — on exception to petition or answer, 87-93. of nonsuit, 94, 95. by default, 96-101. of dismissal, 100. by confession, 102-104. by nil (licit, 105. for plaintiff, on verdict, 106. on trial by court, 107. on awax'd of arbitrators, 108. for recovery of specific prop- erty, 109. in suit for specific property, the same having been replevied, 110. for recovery of land. 111. foreclosing a lien, 112. in suit by attachment, 113. scire facias to revive, 134, and note. JUDICIAL SALES — notice and return, 123-125, and notes. JURY TRIAL — in case of default, 96, 97, notes. LEVY — of writof a(tach»iient,51.andnotes. LIEN — judgment foreclosing, 113, 113. order of sale, 127. NOTICE — ol filing interrogatories, 37. precept to serve, 38. to garnishee that his answer is con- troverted, 64. of sale on execution, 123-125. NOTICE BY PUBLICATION — of filing inteiTogatories, 39, 40. of sales on execution, 124, 125. OATH — of office, 1. 3. note. of clerk of district court. 5, note. of deputy, 8, note, of arbitrators, 84. OFFICIAL BONDS — sheriff's, 2. of deputy sheriff, 4. clerk of district court, 5. clerk pro tevipore, 7. ORDERS OF COURT — admitting one to sue in forma pauperis, and appointing coun- sel, 10. appointing counsel to defend for one cited by publication, 11. appointing guardian ad litem, 12. to make an administrator a party, oo for change of venue. 45. for a continuance, 48. sale of perishable property seized under writ of sequestration, p. 51. for an injunction, 75. attachment for disobeying an in- junction, 78. awarding a certiorari to a justice, 80. ORDERS OF SALE — of personal property seized under attachment, 55. under writ of sequestration, 73. on foreclosure of lien, 127. POWER OF ATTORNEY — to confess judgment, 103. RECEIVER — service of citation in suits against, 16, note. REPLEVY BOND — by defendant in attachment, 53, and note, in garnishment, 61. in sequestration, 70, 71. 94 INDEX TO FORMS. RETURN OF WRITS — citation, 14, and note. citation by publication, 24 sub]ioena, 35. attachment for witness, 86. of precept to serve notice of inter- rogatories, 38, 40. writ of attachment, pp. 34, 35. order of sale of personal property seized under attachment, p. 38. commissioner's return in taking answer of garnisliee, p. 44. writ of sgquestration, p. 49. order of sale of property seized under writ of sequestration, p. 52. attachment for disobeying an in- junction, p. 56. citation in error, 117. executions and orders of sale, 123, 124. SALE OF PERISHABLE PROP- ERTY— property seized under attachment, application, 54. order of sale, 55. officer's return, p. 38. replevy of proceeds, 53, note, notice; time of advertisement, 54, note, in sequestration, application for, 72. order of judge, p. 51. order of sale, 73. bond of purchaser, 74 SCIRE FACIAS — to make parties, 32. to revive a judgment, 134, and note. SEQUESTRATION — affidavit for writ, 67. analysis of articles 4864-65, R S., p. 47. bond for writ, 68. form of writ, 69. officer's return, 69. writ not issued until petition filed, 69, note, replevy by defendant, 70, and note, replevy by plaintiff, 71. sale of perishable property; order of judge, 72. order of sale; sheriff's return, 73. bond of purchaser, 74 SERVICE OF CITATION — generally, 14, note. on a domestic corporation, 16, note. SERVICE OF CITATION (con.) — in a suit against a receiver, 16, note. on a foreign corporation, 17. on a life or health insurance com- pany. 17, note. on a city, town or village, 18. in suits against counties, 18, il'ote. or partners, 19. citation in error, 117. SERVICE OF NOTICES — filing interrogatories, 37, note, precept, 38, 40. SERVICE OF WRITS — subpoena for witnesses, 35, note. of garnishment, 60, note. writ summoning garnishee to ap- pear before commissioner, 63, note. notice to garnishee that his answer is controverted, 64, note. SHERIFF — oath and bond, 1, 2. deputy, appointment of, 3. bond to the sheriff, 4 SHERIFF'S DEED, 133. SUBPCENA DUCES TECUM, 35. SUBPCENA FOR WITNESSES, 34 35, note. SUIT IN FORMA PAUPERIS — affidavit of poor person, 9. appointment of counsel for, 10. SUPERSEDEAS — prayer for; when required, 114, note; 118. form of bond, 115. on recovery of land, 115, note, form of writ. 118. TRIAL OF RIGHT OF PROPERTY — claimant's oath, 65. claimant's bond, 66. return of writ; jurisdiction of courts, 66, note. VENDITIONI EXPONAS, 131. WITNESSES — subpcBna for, 34, 35. attachment against, 36, and note. return, 36. non-attendance, 36, note. WRIT OF ERROR. See Appeal This book is DUE on the last date stamped below LAW LIBRARY UNWERSITY OF CALIFORNIA UC SOUTHERN RFGIONAL LIBRARY FACILITY IIIHIIIHII1IMI AA 000 852 094 2 '''S<^'V^ '.a'-n — ';■•;•* ^TT'*"/'' VEK.- .IFyRMiA LIBRARY