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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

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

Online LibraryJohn SaylesPractical forms for use in civil cases : in courts of record in the State of Texas → online text (page 4 of 9)