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•existed on the day of , IS — , be and the same is foreclosed,



"Til APPEALS AND WRITS OF ERKOR.

and that an order of sale be issued commanding the sale of said
property, or so much thereof as may be necessary for the satisfac-
tion of this judgment.f

It is further ordered, adjudged and decreed that the said plaintiffs

have and recover of the defendant C. D., and and

-, the sureties on his replevy bond, the sum of dollars \the



amount of the j^idgment, interest and costs, or the value of the prop-
erty replevied and interest, according to the terms of the rej)levy bond,'],
for which they may have their execution.

\_If the property has heen delivered to a claim.ani for the trial
of the right of property, proceed from f , omitting the statement that
it was replevied, after *, and stcite: was delivered to E. F., claim-
ant, who on the day of , A. D. IS — , Hied with said

officer his affidavit and bond, with and • as sure-
ties, for the trial of the right of property, which issue is pending in
the court of county, and undetermined, between plaint-
iffs and the said E. F. It is therefore considered by the court that
said attachment lien be foreclosed, subject to the judgment ren-
dered in said suit for the trial of the right of property, and that,
should said claimant fail to establish his right to said property, the
clerk of this court shall issue an order of sale directed to the proper
officer, commanding him to sell the above described property, or
so much thereof as may be necessary, for the satisfaction of the
judgment rendered in this cause.]

Where an attachment issued from a county court is levied on land, an order
or decree foreclosing the lien is not necessary; but the judgment must briefly
recite the issuance and lev3^ of the attachment, and such recital will be suffi-
cient to preserve the lien. The land may be sold under execution, and the sale
will vest in the purchaser all the estate of the defendant in attachment in such
land at the time of the levy of the writ. R. S. 214. But see, as to the power of
the county court to enforce liens, 1 Tex. Civ. Prac, § 112,



No. 114.

Cost Bond on Appeal or Writ of Error.

A. B. )

~So. — . V. V

CD.)

Whereas, in the above numbered and entitled cause, pending in

the court of county, and at a regular term of said court,,

to wit, on the day of , 18 — , the said A. B. recovered judg-
ment against the said C. D. for the sum of dollars, with inter-
est thereon from the day of , 18 — , at per cent, per

annum, and all costs of suit, from which judgment the said C. D.
has taken an appeal [or sxied out a writ of error'] to our court of

civil appeals for the supreme judicial district, at , in the^

county of : *

Now, therefore, we, C. D. as principal, and M. IST. and O. P. as-
sureties, acknowledge ourselves bound to pay A. B. the sum of



APPEALS AND WRITS OF ERROR. "5

dollars [at hast douhle the prohahle amount of the costs of the suit in
the court of civil appeals, supreme court and court helow, to le fixed
lyy the clerk of the court heloio\ conditioned that the said C. D., ap-
pellant \or plaintiff in error\ shall prosecute his appeal [or virit <f
error'] with etfect, and shall pay all costs which have accrued in the
court below and which may accrue in the court of civil appeals and
the su])reme court.

Witness our hands this day of , A. D. 18 — .

C. D.

M.N.

O. P.

I have fixed the probable amount of the costs of suit in the court
of civil appeals, the supreme court and the court below at dol-
lars, and approve the foregoing bond this day of , 18 — ,

W. R,
Clerk of Court, County.

When no bond is required, an appeal is perfected by giving notice of appeal
in open court; wliei-e a bond is required, by giving notice and filing bond. R. S.
1387, i;JSS; 2 Tex. Civ. Prac, ^^ 1126, 1127, 1133. As to the requisites of a cost
bond, see 2 Tex. Civ. Prac, § 1134.

A -writ of error is obtained by filing a petition with the clerk of the trial court.
The petition must be addressed to the clerk, must state the names and resi-
dences of the parties adversely interested, describe the judgment with sufficient
certainty to identify it, and pray for a writ of error. If a supersedeas is desired,
the facts authorizing it must be stated, with a prayer for its issuance. 2 Tex.
Civ. Prac, § 1130. The writ of supersedeas is required only when execution has
been issued. R. S. 1406.

No. 115.

Siqyersedeas Bond on AiiiJeal or Writ of Error.

[Copij the preceding Form to *.] Now, therefore, we, C. D. as
principal, and M. N. and O. P. as sureties, acknowledge ourselves

bound to pay A. B. the sum of dollars \at least dotdjle the

amount of the judgment, interest and costs], conditioned that the
said C. D., appellant [or plaintiff in error], shall prosecute his ap-
peal [or writ of error] with effect, and in case the judgment of the
supreme court or the court of civil appeals shall be against him, he
shall perform its judgment, sentence or decree, and pay all such
ilauuiges as said court may award against him.

"Witness our hands this^ day of , A. D. 18 — .



Approved, etc.



CD.
M.N.
O. P.



Where the judgment is for the recovery of land or other property (which
should be recited in the bond), the bond must be further conditionoJ that
the appellant or plaintiff in error shall, in case the judgment is affirmed, ]iay to
the appellee or defendant in error the value of the rent or hire of the property
in any suit which may be brought therefor. R. S. 1401, MO).



74 APPEALS AND WKITS OF ERROR.

No. 116.

Affidavit in Lieu of Cost Bond on Appeal or Writ of Error.

A. B.
'Eo.—. V.

CD.,

C. D., defendant in the above entitled and numbered cause, pending
in the court of county, being- duly sworn, says that at a reg-
ular term of said court, to wit, on the day of , A. D. 18 — , the

said A. B., plaintiff in said cause, recovered a judgment against him,

the said C. D., for the sum of dollars, with interest thereon

from the day of , 18 — , at per cent, per annum, and

all costs of suit, from which said judgment he desires to prosecute

an appeal \_or writ of erroi'^^ to the court of civil appeals for the

supreme judicial district, but that he is unable to pay the costs of
appeal \or the writ of error\ or any part thereof, or to give security
therefor. C. D.

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

18—. , W. F.,

Clerk of Court, County.

As to the requisites of the aflSdavit, the mode of proof in case of a contest,
etc., see 2 Tex. Civ. Prac, § 1137.

No. 117.

Citation in Error.

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

Greeting:

Whereas, on the day of , A. D. 18 — , a judgment was

rendered by our court of county, for the sum of dol-
lars and costs of suit, in favor of A. B. and against C. D., in a cer-
tain cause pending in said court numbered on the docket

thereof, in which the said A. B. is plaintiff and the said C. D. is de-
fendant [describing the judgment according to the petition for the
writ of error\^ and whereas the said C. D. has filed with the clerk

of our said court, on the day of , 18 — , a petition for

a writ of error for the revision and correction of said judgment:
You are therefore commanded forthwith to summon the said A. B.
to appear, within sixty days from the service of this writ, and de-
fend the said writ of error before our court of civil appeals for the
supreme judicial district, at , in the county of .

Herein fail not, but of this writ make due return within ten days
from the issuance hereof \or twenty days, if the defendant resides
mot of the county], showing how you have executed the same.

Witness , clerk of the court of county.

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

this the day of , A. D. 18 — .

[Z. 8.] W. F.,

Clerk of Court, County.

Issued this day of , A. D. 18 — .

W. F.,
Clerk of Court, County.



APPEALS AND WRITS OF ERROR. 75

Slieriff's Return.

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

on the day of , A. D. 18 — , by deliverino^ to the within

named , in person [to each defendant, if more than o)ie], a

true copy of this writ, J. D.,

Sheriff of County.

Service must be made forthwith. If the writ is returned not served, the dili-
gence used must be shown, and wliere the defendant is to be found, so far as
the officer has been able to ascertain. The clerk will fortl,iwith issue an alias
or pluries citation, which must indicate how many previous citations have been
issued. If it appears from tlie papers of the cause, or from the return, that the
defendant is a non-resident of the county, the citation must direct service to
be made on his attorney of record. Service may also be made by publication.
R. S. 1393-1399.



No. 118.

Writ of Supersedeas.

■ The State of Texas, To any Constable of County., Greeting:

"Whereas, on the day of , A. D. 18 — , in the court

of count}'', in a certain cause therein pending, numbered

on the docket thereof, wherein A. B. is plaintiff and C. D. is defend-
ant, the said A. B. recovered a judgment against the said C. D. for

the sum of dollars, with interest and costs of suit, on which

said judgment an execution, numbered , was issued out of said

court, on the day of , A. D. 18 — , and delivered to

-, sheriff of county ; and the said C. D. having perfected an



appeal [or icrit of error'\ to remove said judgment and all proceed-
ings thereon to our court of civil appeals for the supreme

judicial district, by executing a supersedeas bond as required by law :

These are, therefore, to command you to cause , sheriff

of county, to desist from any further proceeding under or by

virtue of the said execution, and that he return the same forthwith.
Herein fail not, but of this Avrit make due return forthwith, show-
ing how you have executed the same.

Witness , clerk of the court of county.

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

this the day of , A. D. 18 — .

W. F

Clerk of Court, County.

Issued the day of , A. D. IS — .

W. F.,
Clerk of Court, County.

If execution has not been issued, the filing of a supersedeas bond stays the
execution of the judgment. If execution has been issued, the fact must be
stated in the petition for a writ of error, with a prayer for a supersedeas, which
must issue forthwith. R. S. 1406, 2326.



70 APPEALS AND WKITS OF ERROK.

No. 119.

Certificate of Judgment for Affirmance on Appeal.

The State of Texas,
County of .

At a terra of the court, begun and hoklen at , within

and for the county of , before the Hon. , judge thereof,

on the day of , A. D. 18 — , and ending on the day of

, A. D. 18 — , the following cause came on for trial:

A. B., Plaintiff, )

^o. — . V. \

C. D., Defendant. )

And afterwards, to wit, on the day of , A. D. 18 — , a

judgment was rendered therein by said court, in words and figures
as follows : [Here copy the judgmentPf'

And afterwards, to wit, on the day of , A. D. IS — , said

: gave notice of appeal in open court, which was noted on

the docket and entered of record in \A^ords as follows: {Insert the
entry. Omit this paragraph if the recital is made in the judcjment^^

And afterwards, to wit, on the day of , A. D. 18 — , said

■ filed his appeal bond in words and figures as follows:

{Copy the appeal hond loith its indorsements^

The State of Texas,

County of .

I, , clerk of the court in and for the count}'' of

-, state of Texas, do hereby certify that the foregoing



pages contain a true and correct copy of the judgment, notice of
appeal, and appeal bond in a certain cause determined in said court,

numbered on the docket thereof, wherein is plaintiff

and is defendant.

Witness my hand and the seal of said court, this day of

, A. D. 18—.

[Z. 8.'\ W. F.,

Clerk of Court, County.

See 3 Tex. Civ. Prac, § 1182.



No. 120.

Certificate for Affirmance on Writ of Error,

The State of Texas, )
County of . j

{Copy the p>receding Forvi to *.]

And afterwards, to wit, on the day of , A. D. 18 — y

said filed his petition and bond for a writ of error, in

words and figures as follows: {Copy the petition and bond.']

And afterwards, to wit, on the day of , A. D. 18 — , the



APPEALS AND AVKITS OK KKKOK. 7(

clerk of said court issued a citation in error, which with the return
thereon is in words and figures as follows: \_Copij citation ami re-
turn and all indorsements.^

The State of Texas, )
Oount}^ of . i

I, , clerk of the court of county, do hereby

certify that the forcigoing pages contain a true and correct

copy of the judgment, })etition and bond for writ of error, and cita-
tion in error and return thereon, in a certain cause determined in

said court, numbered on the docket thereof, wherein — — ■

is plaintiff and is defendant.

Witness mv hand and the seal of said court this day of ,

A. D. IS—.

[Z. s.-\ ^Y. F.,

Clerk of Court, County.

Indorse as indicated below.

No. 121.

Indorsements on Certificate for Affirmance.

A. B., Appellant [or Plaintiff in Error\ \

No. — . V. V

C. D., Appellee {or Defendant in Error']. )

From County.

Applied for by on the day of , A. D. 18 — ,

and delivered to on the day of , A. D. 18 — .

^\. F.,

Clerk of Court, County.

See Rule 98 for district and county courts; 2 Tex. Civ. Prac, § 1148. As to
form and arrangement of transcript, see 2 Tex, Civ. Prac, §§ 1144, 1145.

For suggestions for obtaining a certiorari to perfect the record, see 2 Tex.
Civ. Prac, ^ 1186.



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EXECLTIONS AND ORDERS OF SALE. Ti>

The several items of the bill of costs to be collected must be indorsed on
every execution. Costs accruing on an appeal or writ of error are collected on
an execution issued from the appellate court. R. S. 984, 1036; 1 Tex. Civ.
Prac, § 742.

When an alias or pluries execution is issued, it mu«t show on its face the
number of previous executions which have been issued on the judgment. R S.
2338.

The execution must be made returnable on the first day of the next term of
the court, or in thirty, sixty or ninety days, if so directed by the plaintiff, his
agent or attorne}^ R. S. 2338.

As to the county to which executions may issue, procedure on death of a
party, see 2 Tex. Civ. Prac, § 1239 et seq.

As to execution against principal and surety, see 2 Tex. Civ, Prac. g 1016.

For forms in designating homestead, see Sayles' Laws of Business, §«^ 314-316.
See, also, 2 Tex. Civ. Prac, gg 1248, 1249.



No. 123.

Return upon an ExeGution of Sale of Personal Propert'tf.

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

— . M., and executed on the day of , A. D. 18 — , at

— . M., by taking into my possession the following described per-
sonal property of the defendant, pointed out by said defendant,
viz.: [^Insert a description of the property i\ And afterwards, on

the day of , 18 — , advertised the same for sale at ,

on the day of , 18 — , by written advertisement posted

for ten days successively at three public places in the county of

, one of which was at the court-house door of said county, and

one at , the place of sale. And on said day of , 18 — ,

at , pursuant to said advertisement, the said property being

then and there present and subject to the view of the persons at-
tending the sale, I sold the said property to , to whom

the same was struck otf for the sum of dollars, that being the

highest sum bid for the same. And the said having paid

the sum so bid by him, the said property was delivered into his pos-
session. J. D.,

Sheriff of County.

No. 124.

Return upon an Execution of Sale of Real Estate.

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

— . M., and afterward, to wit, on the day of , A. D. 18 — ,.

at o'clock — . M., being unable to find any personal property

or uncultivated lands in ray county belonging to the defendant,
and the defendant neglecting to point out other property, I levied
the within writ on the following: described cultivated land belong-



^0 EXPXUTIOKS AKD ORDERS OF SALE.

ino' to the defendant : [Insej^f a (lescription?^ And afterwards, on the

day of , A. D. 18 — , advertised the same for sale at the

court-house door of the county of : , on the day of ,

A. I). 18 — , being the first Tuesday of said month, by written ad-
vertisement posted for twenty days successively next before the

said day of sale, at three public places in the county of , one

of which was at the door of the court-bouse of said county; and
also delivered to the defendant a copy of said notice \or^ if he is a
non-resident of the county, that a copy of the notice was mailed to
Jiim, directed to him at his postoffice], and mailed a copy of the same

to , his attorney of record.

\_If the defendant reqtiests that notice of sale he published: I also

caused a notice of said sale to be published in the ,a newspaper

published in the county of , for three consecutive weeks before

said sale, to wit, on the , and days of , A. D. 18 — ,

and I herewith return a printed copy of said notice.] And on said.

day of , A. D. IS — , between the hours of 10 o'clock

A. M. and 4 o'clock P. M., at the court-house door of said county,

I sold said property at public sale to , to whom the same

was struck off for "the sum of dollars, that being the highest

secure bid for the same; and the said having paid the

sum so bid by him, I executed to him a deed for said land.
^ J. D.,

Sheriff of County.

The statute provides for the sale of land in separate lots or tracts. E. S. 2362-
2364. If the property does not sell for enough to satisfy the execution, the offi-
cer proceeds anew. R. S. 2374. If a bidder refuses to comply with his bid, the
officer may sell the property again, on the same day if there be sufficient time;
if not, he must re-advertise. R. S. 2382.

Notice is to be published, at the request of the defendant, if there be a news-
paper in the county that will publish it for the compensation allowed. The
contents of the notice are prescribed by statute. R. S. 2366.

The statute does not direct the manner of making the return nor what facts
shall be stated. See 3 Tex. Civ. Prac, §§ 1275, 1276.



No. 125.

Notice of Sale of Beat Estate under Execution.

Execution Sale,

^™ oTnt^^rf — 1 ^"^ *^^ ^''''^^ ""^ County.

A. B. and C. D., partners, plaintiffs, against E. F., defendant.

By virtue of an execution issued out of the court of

county, on a judgment rendered in said court on the day of

, A. I). 18 — , in favor of tlie said A. B. and C. D. and against

the said E. F., I did, on the day of , A. D. IS—, at



EXECUTIONS AND ORDEUS OF SALE. 81

o'clock — . M., levy upon the following described tracts and parcels

of land situate in the county of , state of Texas, and belonging

to the said E. F., to wit: {rlescr'ihe the land, giving the numler of
acres, original survey, locality in the county, and the name hy which
the land is most generally known j if imder an order of sale on the
foreclosure of a mortgage or other lien, describe the property as it is

described in the judgment and order of sal e^^ ; and on the day of

, A. D. 18 — , being the first Tuesday of said month, between

the hours of 10 o'clock A. M. and 4 o'clock P. M. on said day, at
the court-house door of said county, I will offer for sale and sell at
public auction, for cash, all the right, title and interest of the said
E. F. in and to said property.

Dated at this day of , A. D. 18 — .

J. D.,
Sheriff of County.

The description given in the above form is that prescribed by the statute
where the notice is published. It would probably be suflBcient in any case.
R. S. 2366. The purpose of the advertisement is to give notice of the time and
place of sale, and also to afford persons desiring to purchase an opportunity to
examine the title, and to determine for themselves what land or interest in land
they can acquire by a purchase. 2 Tex. Civ. Prac, § 1283.

The notice, written or printed, must be posted at three public places in the
county, one at the court-house door (at the usual place for posting notices.
2 Tex. Civ. Prac, § 1283), for at least twenty days successively next before the
(lay of sale; a copy must be delivered to the defendant, if lie resides iu the
county, and if not it must be mailed to him, and a similar notice must be
mailed to his attorney of record. The notice must also be published, if requested
by defendant. R. S. 2366. As to what is meant by "the court-house door,"
see 2 Tex. Civ. Prac, §§ 1280, 1283.

The above form may be varied for a sale of personal property.



No. 126.

Delivery Bond ly Defendant in Execution.

A. B. )

Xo. — . V. I
CD. )

Whereas, by virtue of an execution issued out of the court

of county, on the — - day of , A. D. 18 — , upon a certain

judgment rendered in said court on the day of , A. D.

18 — , in favor of A. B., plaintiff, against C. D., defendant, ,

the sheriff of said county of , did, on the day of



A. D. 18 — , seize and take possession of the following described
])i'0]ierty of the said defendant, viz. [descrihe the proj^ertyY, and all

of said property, having been appraised by the said sheriff at

dollars, was returned to the said C. D. at his request: Xow, there-
lore, we, C. D. as principal, and M. X. and O. F. as sureties, ac-
knowledge ourselves bound to the said A. B., to the effect that said
6



^.^



82 JiXECLTIOXS AND OEDERS OF SALE.

property shall be delivered to said , sheriff as aforesaid,

at , on the day of , A. D. 18 — , to be sold according-

to law, or, in default thereof, that the said C. D. will pay to said

, sheriff as aforesaid, the sum of dollars, which is the

fair value of said property.

Witness our hands this day of ^ A. D. 18 — .

C. D.
M. K
O. P.

Approved this day of , A. D. 18 — ,

J. D.,
Sheriff of County.

If the property is not delivered, nor payment made, according to the terms
of the above bond, the officer will return the bond forthwith, indorsed "for-
feited," to the clerk of the court; and if the judgment remain unsatisfied, in
whole or in part, execution will issue against the principal and sureties for the
amount due, not exceeding the stipulated value of the property. The clerk
must indorse on the execution that no delivery bond is to be taken. R. S. 3359.
See Form 130.



No. 127.

JExecution and Order of Sale.

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

Greeting:

Whereas, on the da}^ of , A. D, 18 — , A. B. recovered a

judgment in the court of county against C. D., for the

sum of dollars, with interest thereon from the day of

, 18 — , at per cent, per annum, and all costs of suit, with

a foreclosure of a lien on the following described property, viz.

{describe the property^ as said lien existed on the day of ,

18 — , and ordering a sale of said property as under execution to
satisfy said judgment:

Now, therefore, you are hereby commanded that you seize the
above-described property and sell the same as under execution;
and if the said property cannot be found, or if the proceeds of a
sale thereof be insufficient to satisfy said judgment, interest and
costs of suit, and the further costs of executing this Avrit, then of
the goods and chattels, lands and tenements of the said C. D., you
will cause to be made said sum of money, or any balance remain-
ing unpaid, as in case of ordinary executions.

Herein fail not, and have you the said moneys, together with this
writ, showing how you have executed the same, before said court,

at the court-house thereof in the town of , on the first day of

the next term thereof, being the day of , A. D. 18 — [or

in thirty, sixty or ninety days, if so directed hy the plaintiff, his
agent or attorney}.



EXECUTIONS AND ORDERS OF SALE. OO

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. T>. 18 — .


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