John Sayles.

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

. (page 6 of 9)
Online LibraryJohn SaylesPractical forms for use in civil cases : in courts of record in the State of Texas → online text (page 6 of 9)
Font size
QR-code for this ebook


Count}" of .

Before me [na?ne and style of office], in and for the said county

of , on this day personally appeared , who, being

duly sworn, states on oath that the foregoing \or within, or an-
nexed] account in favor of ■ against , for the

sum of dollars, is, within the knowledge of affiant, just and

true; that it is due, and that all just and law^ful offsets, payments
and credits have been allowed.

{Signature of affiant.]

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

18—.

"Witness my hand and seal of office, the day and date above writ-
ten.

[Z. S.] .

{Style of office.]

The sworn account is prima facie evidence unless a counter-affidavit is filed.
See 1 Tex. Civ. Prac, § 488; R S. 2323.



JLDCiMKNT.S. CI

No. 87.

Judgment Overruling Exception to the Petition When There is a

Plea Filed
A. B. )

No. — . V. [ ss. clay of , A. D. IS—.

CD. )
This day came the parties by their attorneys, and then came on
•to be heard the exception to the plaintiff's petition [stating it to he
to the original., amended., or supplemental p/etition, as the case may
he] ; and the argument of counsel tliereon being heard, it is tlie
opinion of the court that the law is for the plaintiff.-' It is there-
fore considered by tlie court that the exception be overruled, and
that the plaintiff' recover of the defendant the costs of said excep-
tion, for which he mav have his execution.

No. 88.

Judgment Overruling Exception to the Petition Where There is No
Plea Filed, hut Leave to Amend is Given.

A. B. )

No. — . V. - ss. day of , A. D. 18 — .

CD.)
[Commencevient as in Form No. 87 to''', and contimie:] And the
defenchnit now here prays the court for leave to file his amended
answer, which is accordingly granted. It is therefore considered
by the court that the exception be overruled, and that the plaintiff'
recover of the defendant the costs of said exception, for which he
may have his execution.

No. 89.

Judgment Overruling F.vception to the Petition Where There is
JS'o Plea Filed and No Amendment Made.



day of , A. D. 18—.




This day came the parties by their attorneys, and then came on
to be heard the defendant's exception to the plaintiff's original [or
amended, etc.] petition ; and the argument of counsel fhereon being
heard, it is the opinion of the court that the law is for the plaintiff.
It is therefore considered by the court that the exception be over-
ruled, and that the plaintiff recover against the said defendant his
<lama;^es by occasion of the premises. [Where the cause of action is
liquidated, proceed asfolloios:'] And it appearing to the court that
the cause of action is liquidated and proved by an instrument of
writing, it is ordered that the clerk do assess the'damages sustained



C3 JUDGMENTS.

by said plaintiff: and the said clerk now here having assessed the-
damages aforesaid at the sum of doUars, it is therefore con-
sidered by the court that the said plaintiff [^naming him'] do have
and recover of the said defendant \_namhighhix\ the sum of dol-
lars, with interest thereon, at the rate of per cent, per annum,

together with his costs in this behalf expended, and that he have
his execution. It is further ordered that execution issue in favor of
the officers of court against each party respectively for the costs by
him in this behalf incurred.

No. 90.

Judgment Sustaining Exception to the Petition When the Plaintiff
Asks Leave to Amend.
A. B. )

Ko. — . V. V ss. day of , A. D. IS—.

CD. )
This day came the parties by their attorneys, and then came on
to be heard the defendant's exception to the plaintiff's petition filed
, 18 — ; and the argument of counsel thereon being heard, it is



the opinion of the court that the law is for the defendant.* And
the plaintiff now here prays the court for leave to file his amended
petition, which is accordingly granted. It is therefore considered
by the court that the exception be sustained, and that the defend-
ant recover of the plaintiff the costs of said exception, for which
he may have his execution.

No. 91.

Judgment Sustaining Exception to the Petition Wliere the Plaintiff
Does Not Ask Leave to Amend.

A. b!)

No. — . V. y ss. day of ■ , A. D. IS—.

CD.)
[Commencem.ent as in Form No. 90 to''^'., and continue:'] It is
therefore considered by the court that the defendant [jiaming him]
go hence without day, and that he recover of the plaintiff [naming
him] his costs in this behalf expended, for which he may have his
execution.

No. 92.
Judgment Sustaining Exception to tlie Answer,



No. — . V. \ ss. day of , A. D. 18—.

CD.)
This day came the parties by their attorne3''s, and then came on
to be heard the phdntiff's exception to the defendant's answer; and
the argument of counsel thereon being heard, it is the opinion of



JUDGMENTS. Oi>

the court that the law is for the plaintiff. It is therefore consid-
ered by the court that the exce])tion bo sustained, and that the de-
fendant do answer further;* and that the \)\iiintifl [naming him]
recover of the defendant [naming him] the costs of said exception,
for which he may have his execution.



No. 93.

Judgment Sustaining Uxception to Answer Where Defendant Elects
to Abide by His Pleadings.
A. B. )

No. — . V. V ss. day of , A. D. 18—.

CD.)
[Commencement as in Form iVb. 92 to *, and continue:] And the
said defendant now here refuses to answer further, but elects to
abide b}'" his said pleadings. It is therefore considered by the
court that the plaintiff [namliig him] recover against the defend-
ant [naming him] his damages by occasion of the premises. [When
the cause of action is liquidated^ ^proceed as in Form No. 96 from *.]



No. 94.

Judgment of Nonsuit.
No. — . v. J- ss. day of , A. D. 18-



A. B. )

CD.)



This day came the parties by their attorneys, and the plaintiff
says he will not further prosecute his said suit.* It is therefore con-
sidered by the court that the plaintiff [naming him] take nothing
by his suit, and that the defendant [naming him] go hence without
day, and that he have and recover of the plaintiff his costs in this
behalf expended, and that he have his execution.



No. 95.

Judgment of Nonsuit Wlien Plaintiff Fails to Aj^^ear.




day of , A. D. 18—.

This day came on to be heard the above-entitled cause, and the
said plaintiff having failed to appear and prosecute his said suit [as
in preceding Foi'in^from *].



^64 JUDGMENTS.

No. 96.

Judgment hy Default and Danuujes Assessed hy the Clerh.

A. B. )

Ko. — . V. \ ss. day of , A. D. IS—.

C. D. )
This day came the plaintiff by his attorney, and the said defend-
ant, though duly cited, having failed to appear and answer in this
behalf, but wholly made default, wherefore the said A. B., plaintiff,
ought to recover against the said C. D., defendant, his damages by
occasion of the premises;* and it appearing to the court that the
cause of action is liquidated and proved by an instrument of writ-
ing, it is ordered that the clerk do assess the damages sustained by
said plaintiif ; and the said clerk now here having assessed the dam-
ages aforesaid at the sum of • dollars,t it is therefore con-
sidered by the court that the said plaintiff, A. B., do have and recover

of the said defendant, 0. T>., the sum of dollars, with interest

thereon at the rate of per cent, per annum, together, with his

costs in this behalf expended, and that he have his execution.

The defendant may demand a jury trial whether the demand be liquidated
or unliquidated. R. S. 1384, 1285. See 1 Tex. Civ. Prac, § 455.

No. 97.

Judgment hy Default, and Writ of Inquiry Atvarded.



day of , A. D. 18—.




This day came the plaintiff by his attorney, and the said defend-
ant, though duly cited, having failed to appear and answer in this
behalf, but wholly made default, wherefore the said A. B., plaintiff,
ought to recover against the said C. D., defendant, his damages by
occasion of the premises; and a jury having been demanded by the
plaintiff, it is ordered by the court that the damages sustained by
the plaintiff be assessed when the cause is called in its regular order
on the docket.

As to the right of plaintiff to a jury trial, see 1 Tex. Civ. Prac, § 455.

No. 98.

Judgment iqmn Writ of Inquiry.
day of , A. D. 18—.




This day came on to be heard the above-entitled cause upon writ
of inquiry heretofore awarded, and the evidence having been heard



JUDGMENTS. 65



by the court, etc. {If on a tibial hy jury — and thereupon came a
jury of good and lawful men, to wit, E. F. and eleven others, who,
being duly impaneled and sworn, returned the following verdict:

" AVe, the jury, assess the damages sustained by the plain titf at

dollars" ] : It is therefore considered by the court [as in Form No.
96 from f].



No. 99.

Judgment lij Di fault, with Writ of Inquiry as to One Befendantj
and upon a Verdict as to the Other.

A. B. )

j^o. — . V. J- ss. day of , A. D. 18 — .

C. D. & E. F. )
This day came the plaintiff and the said C. D. by their attorneys,
and the said E. F., though duly cited, having failed to appear and
answer in this behalf, but wholly made default, wherefore the said
A. B., plaintiff, ought to recover against the said E. F. his damages
by occasion of the premises; and thereupon said cause came on for
trial, and the evidence having been heard by the court [or there-
upon came a jury, as in Form JVo. 98], it is therefore considered,
etc. [as in Form JV^o. 96].



No. 100.

Judgment of Dismissal as to One Defendant and hy Default against

the Other.
A. B. )

jN'o. — . V. y ss. day of , A. D. 18—.

C. D. & E. F. )
This day came the plaintiff by his attorney, and it appearing to
the court that tlie citation, issued to the defendant C. D. has been
returned not served, the plaintiff says he will no further prosecute
his said suit against the said defendant. It is therefore considered
by the court that the plaintiff' take nothing by his suit against the
defendant C. D., and that the said C. D. recover of the plaintiff
A. B. all costs in this behalf expended, for which he may have his
execution; and the said defendant E. F., though duly cited, -having
failed to appear -and answer in this behalf, and it appearing to the
court that the cause of action is liquidated and proved by an instru-
ment in writing, it is ordered that the clerk do assess the damages
sustamed by said plaintiff"; and the said clerk now here having

assessed the damages aforesaid at the sum of dollars, it is

therefore considered [as in Form No. 101, from *j.



C6 JUDGMENTS.

No. 101.

J\i(lgmentl)]f Defanlt against One of Several Defendants, and against
the Plaintiff as to the Other Defendant.

A. B. )

1^0. — . V. V ss. day of , A. D. 18 — .

C. D. &E. R )
This day came the plaintiff and the said C. D. by their attor-
neys, and the said E, F., though duly cited, having failed to appear
and answer in this behalf, but wholly made default, wherefore the
said plaintiff ought to recover against the said E. F. his damages
by occasion of the premises; and thereupon came a jury of good
and lawful men, to wit, G. H. and eleven others, who, being duly
impaneled and sworn, returned the following verdict: "We, the
jury, find for the defendant C. D. upon the issue joined between
the parties, and assess the damages against the defendant E. F. at

the sum of dollars." * It is therefore considered by the court

that the defendant C. D. go hence without day, and that he re-
cover of the plaintiff his costs in this behalf expended, and that he
have his execution; and that the plaintiff have and recover of the

defendant E. F. the sum of dollars, with interest thereon at

the rate of per cent, per annum, together with his costs in this

behalf expended, and that he have his execution.

No. 102.

Judgment hy Confession upon Appearance Without Process.



day of , A. D. 18—.




This day came the plaintiff by attorney, and the defendant in
his own proper person comes and says that he cannot deny the ac-
tion of the said A. B., plaintiff, nor but that he is justly indebted

to him in the sum of dollars.* It is therefore considered by

the court that the plaintiff, A. B., do have and recover of the said

defendant, C. D., tne sum of dollars, with interest thereon at

the rate of per cent, per annum, together with his costs in

this behalf expended, and that he have his execution.

Any person indebted, or against whom a cause of action exists, may, without
process, appear, in person or by attorney, and confess judgment in open court;
but in such case a petition must be filed, and the justness of the debt or cause
of action must be sworn to by the person in whose favor the judgment is con-
fessed, E. S. 1348.

When the judgment is confessed by attorney, the power of attorney must be
filed, and a recital of its contents nmst be made in the judgment. The power
of attorney or other instrument autliorizing the judgment must be executed
after the suit is brought; and the judgment cannot be authorized b}- the con-
tract or instrunient sued on. R. S. 1849. The amount for which judgment
may be entered should be agreed upon. 1 Tex. Civ. Prac, §§ 644-646.



JUDGMENTS. 67

No. 103.

Poiver of Attorney to Confess Judgment.

The State of Texas, )
County of . j

Know all men by these presents that I, C. D., do by these pres-
ents appoint E. F. my true and lawful attorney, for me and in my

name to confess judgment for the sum of dollars, in a certain

suit brought by A. B. against me, the said C. D., in the court

of county, state of Texas, on a certain promissory note exe-
cuted by me to the said A. B., for the sum of dollars, dated

the day of , A. D. 18 — , and maturing months from

date [or make such descrijytion as will identify the suit].

Witness my hand this day of , A. D. 18 — .



Signed and delivered in presence of

[Two witnesses.]



CD.



The above must be executed after suit brought, must be filed in court, and
its contents must be recited in the judgment. R. S. 1350.



No. 104.

Confession of Judgment hy Attorney in Fact.

A. B. )

l^o. — . V. } ss. day of , A. D. 18—.

CD.)
This day came the plaintiff by his attorney, and the defendant
by his attorney in fact, E. F., ancl the power of attorney being duly
filed in court, by which it appears that the said E, F. is appointed
attorney in fact of the said C. D., defendant, for him, the said C D.,
and in his name to confess judgment in this action in favor of the

said A. B., plaintiff, for the sum of dollars, and it appearing

from the plaintiff's petition heretofore filed, -and duly verified by
affidavit, that tlie aUeged cause of action is just, it is therefore con-
sidered by the court that the plaintiff, A. B., do have and recover

of the said defendant, C D., the sum of dollars, with interest

thereon at the rate of per cent, per annum, together with his

costs in this behalf expended, and that he have his execution.

No. 105.

Judgment hy Nil Dicit.
A. B. )

No. — . V. V ss. day of , A. D. 18—.

CD.)
This day came the parties by tlieir attorneys, and the defendant
withdraws the answer by him heretofore filed, and says nothing in



68 JUDGMENTS.

bar of the plaintiff's action; wherefore the said A. B., phiintiff,
ought to recover against the said C. D., defendant, his damages by
occasion of the premises; and it appearing to the court that the
cause of action is liquidated, etc. ^as in Form JVo. 96 from *].

See 1 Tex. Civ. Prac, §§ 438, 439.

No. 106.

Judgment for the Plaintiff tijpon Verdict of Jury.

A. B. )

Ko. — . V. y ss. day of , A. D. 18—.

CD.)
This day came the parties by their attorneys, and thereupon
came a jury of good and lawful men, who, being duly impaneled
and sworn, upon their oaths do say that they find for the plaintiff,

and assess his damages at the sum of dollars. It is therefore

considered [as in Form JS^o. 96 from f].

No. 107.

Judgment for the Plaintiffs the Case Being Tried hy the Court



;N"o. — . V. y ss. day of , A. D. 18—.




This day came the parties by their attorneys, and submit the
matter in controversy, as well of fact as of law, to the court; and
the evidence and the argument of counsel having been heard and
fully understood, it is considered by the court [as in Form No. 96

from f].

No. 108.

: Judgment for the Plaintiff on the Aivard of Arbitrators.

A. B. )
:No. — . V. \ ss. day of , A. D. 18—.




This day came the parties by their attorneys, and it appearing
to the court that this cause has been duly referred, according to
the statute in such case made and provided, to [mention names of
arhitrators\ to hear and determine, and that the report of said ar-
bitrators has been filed, whereby they award as follows, viz. : ,

it is therefore considered by the court [as in Form No. 96 from, f ,
followirig the award of the a7'l>itrators\.

If the costs are not awarded by the arbitrators, they must be taxed equally
against the parties. The award is filed witli the clerk, and judgment is en-
tered at tJie next suceedin^' term. R. S. 54, 58; 2 Tex. Civ. Prac, ^ 751. See
Form No. 85, su\)va.



JUDGMENTS. 69

No. 109.

Judgment for the Plaintiff for the Eecovery of Si)ecific Property.

A. B. )

No. — . V. \ ss. clay of , A. D. IS — .

CD. j

This day came the parties by their attorneys, and thereupon
came a jury of good and lawful men, who, beinij: duly impaneled
and sworn, upon their oaths do say that they find for the plaintiff,
and that the defendant does detain [Jiere insert a descriptioii of the
propert]l\ as in the plaintiff's petition alleged ;. and they assess the

plaintiff's damages, by reason thereof, at the sum of dollars,

and they assess the value of said \]tere insert the value of each specijid

aj'ticle] at dollars. It is therefore considered by the court

that the plaintiff, A. 13., recover of the defendant, C !)., the [here
insert description of proper ty\ described in the plaintiff's petition,

and the sum of dollars damages, and his costs by him in this

behalf expended.* And if said [Jiere insert description of property'\
cannot be had, it is considered by the court that the plaintiff, A. ]3.,

recover of the defendant, C. D., said sum of dollars, the value

so assessed, in addition to the damages and costs aforesaid, and that
he have execution.

[If the property has heen replevied hy the defendant, proceed from, -
as follows: And if said [here insert a description of the propertrj\
cannot be had, it is considered by the court that the plaintiff, A. B.,

recover, jointly and severally, of the defendant, C. D., and

and , sureties on his replevy bond, filed in this cause



on the day of , A. D. IS — , the said sum of dollars,

the value so assessed, and the further sum of dollars, the value

of the hire of said property so assessed by the jury, and that he
have his execution.]

When the property consists of more than one article, the value of each specific
article must be sejjarately assessed.



No. 110.

Judgment for the Defendant in Suit for the Eecovery of Specific
Property, the Same Having Been Peplevied hy the Plaintiff.

dav of , A. D. 18—.




This day came the parties by their attorne3^s, and thereupon came
a jury of good and lawful men, who, being duly impaneled and
sworn, upon their oaths do say that they find for the defendant,

and that they assess the value of said [describe the property] at

dollars, and the value of the hire from the day of , A. D.

18 — [the date of the replevy hond], at dollars. " It is therefore



70 JUDGMENTS.

considered by the court that the plaintiff take nothing by his suit,
and that the defendant C. D. recover of the plaintiff A. B. and

and , sureties, as hereafter stated, dollars,

the value of said property as aforesaid, and the further sum of



dollars damages. And it further appearing that said property, to wit

[describe it], was, on the day of , A. D. 18 — , delivered

by the sheriff of county to the plaintiff, who thereupon exe-
cuted a replevy bond with and as sureties, it is

ordered that a writ issue commanding the proper officer to restore
said ])roperty to the defendant, and if said property is so restored
the judgment herein rendered for its value shall stand discharged;
but if said property cannot be found, execution shall issue against

the plaintiff' and and , sureties as aforesaid, for

the sum of dollars, the value so assessed, in addition to the

damages and costs aforesaid, for which the defendant C. D. shall
have his execution.

No. 111.

Judgment for the Recovery of Land.

No. — . V. \ ss. day of , A. D. 18—.




This day came the parties by their attorne3^s, and thereupon
came a jury of good and lawful men, who, being duly impaneled
and sworn, upon their oaths do say that they find for the plaintiff',

and assess his damages at the sum of dollars. It is therefore

considered by the court that the plaintiff A. B. recover of the de-
fendant C. D. the premises described and bounded as follows [here
describe the 'prendses\ for which he may have his writ of possession,

and also the sum of dollars, his damages aforesaid, and his

costs in this behalf expended, for which he may have his execution.



No. 112.

Judgment Foreclosing Lien.
day of , A. D. 18—.

This day came the parties by tiieir attorneys, and thereupon
came a jury of good and lawful men, to wit, E. F. and eleven oth-
ers, who, being duly elected, tried and sworn, upon their oaths
do say :

" We find for the plaintiff, and that the facts stated in his peti-
tion are true, and assess the damages at dollars.'"

^ G. H.,

Foreman.

And it appearing to the court, from the finding of the jury afore-
said, that the defendant is indebted to the plaintiff in the sum of
dollars, and that the note sued on bears interest at the rate




JUDGMENTS. 71

ot per cent, per annum; and it further appearing to the court

that said note was executed on the day of , A. D. 18 — , to

secure the payment of the purchase-money for the following de-
scribed tract of land, to wit \Jiere give descriptiou\ it is there-
fore considered by the court that the plaintiff A, B. do have and
recover of the said defendant C. D. said sum of dollars, prin-
cipal and interest, with interest thereon from this date at the rate

of per cent, per annum, together with his costs in this behalf

■expended.

And it is ordered, adjudged and decreed by the court that the
lien as it existed on the day of , A. D. iS — , upon the above-
described tract of land be and the same is hereby foreclosed ; and
that the clerk of this court do issue an order of sale, directed to the

sheriff or any constable of ■ county, commanding him to seize

and sell the above-described tract of land as under execution; and
that he apply the proceeds thereof to the payment and satisfaction

of the said sum of dollars, together with all interest that may

be due thereon, and the costs of this suit. And if the said land
shall sell for more than sufficient to pay off and satisfy said sums of
money, then the said officer is hereby directed to pay over the ex-
•cess to the defendant; but if the said land shall not sell for enough
to pay off and satisf}^ this judgment, then said officer shall make the
balance due as under execution.

And it is further ordered that the said officer place the purchaser
of said property in possession thereof within thirty days after the
<iay of sale.

No. 113.

Judgment for Plaintiff in Suit 1)1/ Attachment.

A. B. & Co. )

:N'o. — . V. } ss. day of , A. D. 18—.

C. D. )

This day came the parties by their attorneys, and thereupon said
cause came on to be heard by the court upon the pleadings and the
evidence. And the court being of opinion that the plaintiffs ought

to recover, it is ordered, adjudged and decreed that and

, partners under the firm name of A. B. & Co., plaintiffs,

■do have and recover of the defendant C. D. the sum of dollars,

together with their costs in this behalf expended, and that they
have their execution.

And it appearing to the court that a writ of attachment hereto-

for issued in this cause was, on the day of , 18 — , by the

sheriff' of county, levied upon the following-described prop-
erty of the defendant [insert descrijytion and valuation']^ and that

the same * was replevied by the defendant, who, on the day

■of , 18 — , executed his rej)levy bond therefor in the sum of

dollars, with and as sureties, it is there-
fore ordered, adjudged and decreed that said attachment lien, as it


1 2 3 4 6 8 9

Online LibraryJohn SaylesPractical forms for use in civil cases : in courts of record in the State of Texas → online text (page 6 of 9)