John Sayles.

Practical forms for use in civil cases : in courts of record in the State of Texas online

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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.



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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


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