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

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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
<lay 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, in the of

, this the — — day of , A. D. 18 — .

[Z. S.] W. R,

Clerk of Court of County.

Issued this day of , A. D. IS — .

W. P.,
Clerk of Court of County.

The above form may be adapted to all ordinary cases, where the defendant
is a non-resident, or is absent from the state, or is a transient person, or where
liis residence is unknown. R. S. 1285, ]o04a, 3070.

In suits for partition of real estate: Give a brief statement of the nature of



18 citatio:n' by publication.

the suit, a description of the interest of the unknown owner or owners, and
command the officer to publish the citation in some newspaper in the county
where the writ issued, if tliere be a newspaper published in such county, and if
not, then in the nearest county where a newspaper is published, for four suc-
cessive weeks previous to the return day. R. S. 3609.



No. 22.

Affidavit for Citation to Unknown Heirs.
A. B. )

1^0. — . V. [

Heirs of C. D. )

A. B. [or , the agent, or the attorney, of A. ^.], plaintiff

in the above-entitled cause, being duly sworn, says that the names
of the heirs of C D., deceased, parties to said suit, are unknown to
affiant.

Wherefore he prays that citation may issue for service by publi-
cation, 'a. B.

Sworn to and subscribed before me this day of , A. D.

18—. W. F.,

Clerk of Court, County.

The suit may be brought against the heirs of a deceased person, and their
heirs or legal representatives. R. S. 1236.



No. 23.

Citation for Unltnown Heirs.

The State of Texas, To the Sheriff or any Constahle of County,

Greeting:

You are hereby commanded to summon the heirs of ,

deceased, whose names are 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 , 18 — , then and there to answer a peti-
tion filed in said court on the day of , 18 — , in a cause

numbered , wherein is plaintiff and the unknown

heirs of are defendants, the cause of action being alleged

as follows: \_Give a hrief statement'of the cause of action.'] You are
further commanded to serve this citation by publishing the same
once in each week for eight successive weeks previous to the return
day hereof, in a newspaper ])ublished in your county; but if no
newspaper is published in said county, then in the nearest county
where a news])aper is published.

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.



CITATIOX BY PUBLICATION ABATEMENT OF SUIT. 19

"Witness , clerk of the court of county.

Given under my hand and the seal of said court, in the of

— , this the day of , A. D. 18 — .

[Z. 6\] W. R,

Clerk of Court of County.

Issued this day of , A. D. 18 — .

W. F.,
Clerk of Court of County.



No. 24.

Officer's Return of Service hy PnhUcation.

Came to hand this day of , A. D. 18 — , at o'clock

— M., and executed by publishing the same in the , a news-
paper published in the county of [slah/uj the fact acGordlng to

the command of the writ, and whyitioas not piihli shed in the oj}icer''s
county, if such is the fact\ once in each week for four successive
weeks {or eight successive weeks'] ])revious to the return da}'^ thereof,

said publication having been made on the , , and ■

days of , A. D. 18 — [or the , , and days of

, a7id on the , , and days of , A. D.

18 — ], and I herewith return a printed copy of said publication.

J.B.,
Sheriff of County.

The return must show within itself that the process has been legally served.
1 Tex. Civ. Prac, § 309.

No. 25.

Suggestion of the Death of a Sole Plaintiff and Order Mailing His
Hcpresentative a Party.

A. B. )

:Nro. — . 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 phiintitl',
A. B., died, and that the said E. F. is now the administrator [or
executor] of the estate of the said A. B.; and that the judgment
recovered in this cause in behalf of the said A. B. would be assets
in his hands, Avhich the said C. D. does not deny, but admits the
same to be true. It is therefore ordered that the suit be continued
in the name of the said E. F., administrator [or executor] as afore-
said of the said A. B.

If there be no administration, and no necessity therefor, the suggestion may
be made by the heir, and he may become a party. See 1 Tex. Civ. Prac, § 315;
R. S. 1246.



20 ABATEMENT OF SUIT.

No. 26.

Suggestion of the Death of a Sole Defendant.

day of , A. T>. 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<u do issue to the said E. F., com-
manding him to appear at the next term of this court, then and



22 ABATEMENT OF SUIT.

there to show cause, if any he has, why he should not be made a
party defendant to this suit.

The suggestion of the marriage may be entered of record in open court, or
the court may act upon a petition filed with the clerk. R. S. 1253.

No. 32.

Scire Facias to Maize Parties.

The State of Texas, To the Sheriff or any Constahle of County^

Greeting:

Whereas, at the last term of our court for the county of

, begun and holden on the ■ day of -^ A. D. 18 — , it was

suggested in open court that C. D., defendant in a certain suit

therein pending, numbered on the docket of said court, wherein

A. B. is plaintiff, has departed this life; and it was ordered by said
court that a writ of scire facias do issue to the representatives of
the said C. D., when known ; and it appearing that E. F., a citizen
of 3"our county, is the administrator and representative of the said
C. D. : Therefore, you are hereby commanded that you summon

the said E. F. to appear before the court, to be holden within

and for said count}^ of , at the court-house thereof in the town

of , on the Monday in next, being the day of

, A. D. 18 — , then and there to show cause, if any he has, why

he shall not be made a party defendant to said suit.

Herein fail not, but of this writ, and how you have executed the
same, make due return according to law, on the first day of the
next term of said court.

Witness , clerk of the coui't 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. ^l] W. F.,

Clerk of Court of County.

Issued on the day of , A. D. 18 — .

AV. F.,
Clerk of Court of County.

Where the plaintiff dies, and no appearance and suggestion are made by the
administrator or heir at the first term of the court thereafter, it is the duty of
the clerk to issue a scire facias in the above' form, for the executor, adminis-
trator or heir, on the application of the defendant. See 1 Tex. Civ. Prac, § 316;
R. S. 1247. The above form may be used where a female defendant marries.

No. 33.
Order to Maize an Administrator a Party.

day of , A. D. IS—.

And now comes the said A. B., by his attorney, and it appearing
to the court now here that the writ of scire facias ^io make a party




WITNESSES. 23

ilefendant in said cause, has been duly served upon E. F. ; and it
iip.pcaring that the said E. F. is the administrator [cr executor'] of
the estate of the said C. D., it is therefore ordered that the said
suit do proceed against the said E. F., administrator as aforesaid.

The above form will suggest the proper entry where the heir is brought in,
or tlie representative of a deceased plaintiff, or the husband of a female defend-
ant who marries pending the suit.

No. 34.

Suhpcenafor Witnesses.

The State of Texas, To the Sheriff or any Constable of County,

Greeting:

You are hereb}^ commanded that you summon E. F. to be and

appear before the court, to be holden within and for the

county of , at the court-house thereof, in the town of , on

the — — Monda}^ in next, being the day of , 18 — ,

then and there to testify in behalf of the plaintiff [or defendant, as
the case may he'] in a certain suit now pending in our said court,
wherein A. B. is plaintiff and C. D. is defendant,* and that he con-
tinue his attendance, from day to day and from term to term, until
discharged by the court or by the said A. B. [the party summoning
hiw^.

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, at office in the town of , this day

of , A. D. 18—. W. F.,

Clerk of Court, County.

Issued this day of , A. D. 18 — .

No. 35.

Siibpaina Duces Tecum

At * in Form No. 34. insert the following clause: And that he do
diligently and carefully search for, examine, inquire for, and bring
with him and produce, at the time and place aforesaid, a certain
[here describe the instrument particularly'], that it may be inspected
by our said court.

Sheriffs Be turn.

Came to hand on the day of , A. D. IS — , and executed

on the same day by reading this subpoena to the within-named
E. F. J. D.,

Sheriff of County.

By ,

Deputy Sheriff.

The witness may accept service by a written memorandum, signed by him
and attached to the subpoena. R. S. 22G(5.

The clerk is required to issue a subpoena for any witness represented to



24 WITNESSES.

reside within the county or to be found therein at the time of the trial. R Si
2264.

For the requisites of a notice to a party to produce papers, and the service of
such notice, see 1 Tex. Civ. Prac, g§ 401, 708.



No. 36.

Attachment against a Witness.

The State of Texas, To the Slieriff or any Constahle of County,

Greeting:

Toil are hereby commanded that you attach J. H. B., and bring

him personally before oar court, held in and for the county of

, at the court-house thereof, on the ■ day of , A. D. 18 — ,

to answer for certain contempts against said court in not obeying
a writ of subpoena commanding him to appear at, etc., on, etc., before
said court, to testify in a suit there to be tried between A. B., plaintiff,
and C. D., defendant, on the part of the plaintiff \or defendant^ ; and
you are further commanded to detain him in your custody until he
shall be discharged by our said court.

Herein fail not, but of this writ, and how 3^ou 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. IS — .

[Z. S.] W. F.,

Clerk of ■ Court, • County.

Issued this day of , A. D. 18 — .



Return to the Foregoing Attachment

Came to hand on the day of , A. D. 18 — , at o'clock

— M., and I have arrested the within-naraod defendant, as I am
within commanded, and have him now before the court.

Dated the day of , A. D. 18 — .

J. D.,
Sheriff of County.



Bcturn ivlien the Witness is SicTi.

Came to hand on the — ■. — day of , A. D. 18 — , at o'clock

— M.

At the delivery of the within attachment to me for execution,
the within-nameci defendant then was, and still continues, so sick
and unwell that it would be dangerous to bring him before the
court here, as I am within commanded; wherefore I have not the




" DEPOSITIOXS. 2S

body of the said defendant before the court now here, according to
the command of the within attachment.

Dated the day of , A. D. 18—.

J. D.,
Sheriff of County.

A fine will not be imposed upon a witness for non-attendance, nor will an at-
tachment issue to compel his attendance, until it be shown to the court, by a(ii-
davit of the party, his agent or attorney, that the lawful fees have been paid or
tendered to such witness. R. S. 2267; 1 Tex. Civ. Prac, g§ 369, 370.

No. 37.

Notice of Filing Interrogatories.

In the Court of County.

Sir: You will take notice that five days after the service hereof

I shall apply to the clerk of the court in and for county

for a commission to take the depositions of , who resides

[or who is to he fou7icr\ in , in answer to the interrogatories at-
tached hereto, to be read as evidence in behalf of the plaintiff on

the trial of said cause. •,

Attorney for Plaintiff.

To C. D., defendant, or A. L., Esq., his attorney of record.

Interrogatories to be propounded to A. L., a witness for the
plaintiff:

Int. 1st.—

The above must be filed with the clerk of the court, and a copy thereof, and
of the attached interrogatories, must be served upon the adverse party, or his
attorney of record, five days before the issuance of a commission. R. S. 2274.

Notice of filing interrogatories is not required before issuing a commission
to take the answer of a party to the suit. R. S. 2294.

Depositions may be taken whether the witness resides in the county where
the suit is pending or out of it. R. S. 2273. See 1 Tex. Civ. Prac, § 377.

No. 38.
Precejyt to Serve Notice of Interrogatories.

A. B. )

IS'o. — . V. J- In the — ^ — Court of Countv, Texas.

CD.)

The State of Texas, To the Sheriff or any Constable of County y.

Greeting:

You are hereby commanded that you serve , the

in the above-stated cause, or ^ , Esq., attorney of record,

with the accompanying certified copy of notice and interrogatories

propounded by tlie in said cause, to , who resides

\or is to he found] in the county of , in the state of .



26 DEPOSITIONS.

Herein fail not, but of this writ, and how you have executed the
same, make due return within five days after service.

AVitness , clerlv 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. S.] W. F.,

Clerk Court, County.

Issued this day of , A. D. 18 — .

Officer's Beturn.

Came to hand on the day of , A. D. 18 — , and executed

<3n the same day by delivering to the within-named the

accompanying certified copy of notice and interrogatories and a
true copy of this writ. J. D.,

Sheriff of County.

When the adverse party is a corporation or a joint-stock association, service
may be made upon the president, secretary or treasurer, or upon the local agent
representing the company in the county in which the suit is pending, or by
leaving a copy of the notice and attached interrogatories at the principal office
of the company during business hours. E. S. 2274

No. 39.

Affidavit for Service of Notice of Interrogatories hy Publication.

A. B. )

'No. — . V. j- In Court of County.

CD.)

Before the undersigned authority personally appeared A. B.,
plaintiff in the above-entitled suit, who, being duly sworn, says that
C. D., defendant tlierein, is without the limits of the state of Texas
and not within the jurisdiction of this court [or cannot he found],
so that notice and copy of interrogatories cannot be served upon
him for the purpose of taking depositions, and that the said C. D.
has no attorney of record [or state that the said G. D. has deceased
since the commencement of the suit., and that his death was suggested
at a prior term of the court', or that he has deceased.^ and that all the
jpersons entitled to claim hy or through him have not made themselves
parties to the suit., and are unknown']. Wherefore he prays that
notice of the filing of the attached interrogatories may be given by
publication. A. B.

Sworn to and subscribed before me this day of , A. D.

18—. W. F.,

Clerk of Court of County.

The above, with the attached interrogatories, must be filed in court, and the
clerk will cause a notice to be published. R. S. 2275; 1 Tex. Civ. Prac, §379.
As to the method of service where service of process has been made by publica-
tion and the defendant has not answered, see R. S. 2276; 1 Tex. Civ. Prac, § 379.



DEPOSITIONS. 27

No. 40.

Frecept to Serve Notice of Interrogatories hy Puhlication.

The State of Texas, Tofhe Sheriff or any ConstaUe of County,

Greeting:

You are herebv commanded that you cause to be published in
some newspaper i'or thirty davs the following notice:
A. B. )

No. — . V. V In Court of County, Texas.

CD.)
To all persons interested in the above-entitled suit:

Notice is herel)y given that A. 13., plaintiff, has filed interroga-
tories in a certain suit pending in the court of county,

Texas, wherein A. B. is plaintiff and C. D. is defendant, No. ,

to , who resides in , the answers to which will be read

in evidence on the trial of said cause; and has also filed an affidavit
in said suit [here state the substance of the aJfidavW] ; and that a com-
mission will issue on or after the thirtieth day after the publication
of this notice to take the deposition of said witness.

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. D. IS — .

[Z. S.-] " W. F.,

Clerk of Court, County.

Issued this day of , A. D. IS — .

Officers Return.

Came to hand on the day of , A. D. IS — , at

o'clock — M., and executed by making publication thereof in the

, a newspaper ])ublished in the city of , for thirty days,

to wit [lie re state the days of the nionth~\. J. D.,

Sheriff of County.

No. 41.

Commission to Take Testimony.

The State of Texas, To any Clerk of the District Court., or any
Judge or Clerk of the County Court, or any Notary Puhlic, of
County, in said State, Greeting: [If the witness be al-
leged to reside without the state, see note below.]
You are hereby authorized and required to summon before you

forthwith , resident of your county, and his answers to take

to the accompanying interrogatories \_and cross-interrogatories'], pro-
pounded to , in a certain cause now pending in the

court of county, wherein A. B. is plaintiff and C. D. is de-
fendant; and having reduced the said answers to writing, you will
cause the said Avitness to swear to and subscribe them before you,



28 DEPOSITIONS.

to which you will certify officially; after which you will seal up
said answers and interrogatories [ajirl cross-interrogatoines, if any\
together with this commission, in a package directed to the clerk
of the court aforesaid, and return the same to this court, con-
forming in all respects to the requirements of the statute in such
cases made and provided.

Witness , clerk of the court of county, and

the seal of said court, at office in the town of , this the

day of , A. D. 18—. W. F.,

[Z. /S'.] Clerk of Court, County.

Issued this dav of , A. D. 18 — .

W. F.,
Clerk of Court, County.

If the witness is alleged to reside or be without the state and within the
United States, address the commission to any court of record having a seal,
any notary public, or any commissioner of deeds duly appointed under the laws
of the state of Texas, within such other state or territory.

If the witness is alleged to reside or be withovit the United States, address it
to any notary public, or any minister, commissioner, or charge d' affaires of the
United States, resident in and accredited to the country where the deposition
is to be taken, or to any consul-general, consul, vice-consul, commercial agent,
deputy consul or consular agent of the United States, resident in such country.
E. S. 2281.


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