John Sayles.

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

. (page 3 of 9)
Online LibraryJohn SaylesPractical forms for use in civil cases : in courts of record in the State of Texas → online text (page 3 of 9)
Font size
QR-code for this ebook


Cross-interrogatories may be filed at any time before the commission issues,
and a copy of the same must accompany the direct interrogatories, to be an-
swered and returned therewith. R. S. 3278.



No. 42.

Instructions to the Commissioner.

1st. The following caption to the answers of the witnesses should

be used, viz. :

A B )
•XT ■ ■ ( Suit pending in the Court of County,

Answers and depositions of [here give the name and vesideiice of
the 'witness or witnesses'] to the accompanying interrogatories, pro-
pounded to [Iiim, her or them] in the above-entitled cause, taken
before [here give the name and ojficial character of the commissioner],
in accordance with the accompanying commission.

Answers of tlie Witness JE. F.

To the first interrogatory he answers, etc.

2d. The answers of the witness, having been reduced to writin^^
must be signed and sworn to by him, or he may be sworn before his
answers are taken. After all the witnesses (if more than one) have



DKi'osnioxs. 29

answered, the commissioner must make the f(jllo\ving- certificate,

viz. :

State of , )

County of . f

I [here give the name and official character of the coiiirnhf<ioncr''\ do
liereby certify that the foregoing answers of A. I>., 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


1 3 5 6 7 8 9

Online LibraryJohn SaylesPractical forms for use in civil cases : in courts of record in the State of Texas → online text (page 3 of 9)