Next followe the citation, or writ, which is issued by the elerk, and dated, tested, and signed by him. Rs style is, " The State of Texas. ' It is ad dressed to the sheriff of the minty in which the defendant is alleged to be found, and commands him to summon the defendant to appear at the next term of the court to answer the plaintiff's petition, a certified copy of whioh accompanies the writ.
The citadel is executed by- the sheriff like an ori ginal writ. • 10. There are certain auxiliary writs, which may be sued out at the commenoement or during the pro mos of the suit, whereby the effects of the de fendant or the property in controversy may be seized by the /Moral and held until replevied until the final termination of the suit, so that it may be sub ject to the jiadgment rendered therein, or the de ftndant is restrained from the COMMi96011 of some act until the'question of right between the parties shall be deteimined. These are the writs of attach ment, garnishment, sequestration, and injunction. But there is no peculiarity in, these writs under the Texas practioe which rendcra it neeessary.to ex plain them here.
When the citation bas been served, the defend ant is in court, and must file his answer within the time prescribed by law for pleading. In those counties in which the term of the court is limited te one week, the answer. must be filed en or before the fourth day of the term ; if the term is not so limited, the answer must be filed on or before the fifth day ; and thia is, accordingly, called the ap pearanee-day.
Upon the morning of the appearance-day the oases upon the appearance docket are called over by the judge in the order in which they have been filed. If the defendant in any suit .has failed to appear by his answer, a final judgment by default may be rendered against him, and a short entry te that effect is made open the judge'a docket. If. the cause of action is liquidated, and established by an instrument in writing, the amount due may be computed by the clerk, or may be found /ay a jury, upon a writ of inquiry, if asked for by either party. Where the cause of action ia unliquidated, tbe damages must be assessed by a jury upon the writ of inquiry when the case ia reached on the regular call of the docket. When the damages
have been amused by the clerk, or jury, as the ease may be, judgment is accordingly entered upon the minutes.
11. The defendant, if he does not intend to re sist the suit, may appear and confeee judgment ; or, if he has pleaded, he may toithdraw hie anstoer, and suffer judgment by nil dicit,--ip either ef which cases the appearance is a waiver of all errors. If the defendant intends to resist the plaintiff'a recovery, he must, within the time pre scribed for pleading, file his anewer.
The answer includes all defensive pleading, and may consist of as many several matters, whether of law or of fact, as the defendant may deem ne cessary for his defence and which may be pertinent te the cause. They must all be filed at the same time, and in the due order of pleading.
The answer may be by demurrer, usually termed an exception, or by plea, or by both. The demurrer is either general or special; and ita office is the same as under the common-law system of pleading. It is not, however, an admission of the allegations of fact, but simply calls upon the court to say whether, granting all the facts to be as the plaintiff states them, any cause of action is shown requiring an answer. A plea is an answer either denying the truth of the matter alleged in the petition, or admitting its truth, and ahowing some new matter to avoid its effect.
The exception or plea may, as at mammon law, be either dilatory or peremptory.
The due order of pleading above referred to is the ancient and what is said to be the natural order of pleading. See PLEADING.
12. The answer may embrace one or all of the grounds of defence, provided only that they be presented in the due order of pleading.
The defendant may also, by a plea in reconven tion, which is analogous. to the cross-hill of the equity system, show that he has a Maim against the plaintiff similar in its nature to that eet ant in the petition, and pray for judgment over against the plaintiff; and, upon the trial, judgment will be given for that party whe may establish the largest claim, for the excess of his claim ever that of his opponent.