Billingsly v. Harris

• Decision Date: 24 February 1891
• Citation: 79 Wis. 103,48 N.W. 108
• Parties: BILLINGSLY ET AL. v. HARRIS ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 103

48 N.W. 108

BILLINGSLY ET AL.

v.HARRIS ET AL.

Supreme Court of Wisconsin.

Feb. 24, 1891.

Appeal from circuit court, Pierce county.

Smith & Vannatta, for appellants.

A. Combacker and R. H. Start, for respondents.

On the question whether, by the execution of an undertaking given in an attachment suit for discharge of the property attached, defendant and his sureties are estopped from controverting the validity of the attachment, counsel for respondents cite the following cases: Inman v. Strattan, 4 Bush, 445;Hazelrigg v. Donaldson, 2 Metc. (Ky.) 445; 2 Wait, Pr. 190; Delaney v. Brett, 1 Abb. Pr. (N. S.) 421, 4 Rob. (N. Y.) 712; Drake, Attachm. § 519; Cruyt v. Phillips, 16 How. Pr. 120;Dunn v. Crocker, 22 Ind. 324; Drake, Attachm. (6th Ed.) § 318, note 3; Lumber Co. v. Raymond, (Iowa,) 40 N. W. Rep. 820;Coleman v. Bean, 32 How. Pr. 370, *42 N. Y. 94;affirming14 Abb. Pr. 38; Onderdonk v. Voorhis, 2 Rob. (N. Y.) 24; Bildersee v. Aden, 62 Barb. 175;McMillan v. Dana, 18 Cal. 339;Bacon v. Daniels, 116 Mass. 474;Birdsall v. Wheeler, (Conn.) 20 Atl. Rep. 607;Gardner v. Donnelly, (Cal.) 24 Pac. Rep. 1072; 1 Amer. & Eng. Enc. Law, 924, and cases cited; Barnes v. Webster, 16 Mo. 258; Wright v. Keyes, 103 Pa. St. 567; Ferguson v. Glidewell, (Ark.) 2 S. W. Rep. 711;Haggart v. Morgan, 5 N. Y. 422;Payne v. Snell, 3 Mo. 409;Paddock v. Matthews, 3 Mich. 18;Kennedy v. Morrison, 31 Tex. 207; Endress v. Ent, 18 Kan. 236; People v. Cameron, 2 Gilman, 468;Bunneman v. Wagner, (Or.) 18 Pac. Rep. 843;Mills Co. v. Stewart, 133 Mass. 462;Kelly v. McCormick, 28 N. Y. 322; Cunningham v. Jacobs, (Ind.) 22 N. E. Rep. 337; Fox v. Mackenzie, (N. D.) 47 N. W. Rep. 386;Carpenter v. Turrell, 100 Mass. 450;Hill v. Harding, 93 Ill. 80;Love v. Rockwell, 1 Wis. 382.

COLE, C. J.

This is an action brought on an undertaking given under section 2742, Rev. St., in an attachment suit. The undertaking recites that it was given in order that the attached property might be released from the attachment, and be delivered to the defendant in the attachment, who desires to retain it. This was the object and purpose of executing the undertaking. It is not denied but that the property was discharged from the attachment on the delivery of the undertaking to the sheriff, who then delivered the attached property, held by him under his writ, to Goggin, the defendant in the attachment. The defendants, in their answer, admitted the issuing of the writ of attachment, as in the complaint alleged, and also admitted the giving of the undertaking on which the action is brought, but, in avoidance of their obligation, aver that Goggin was a resident of this state, to the knowledge of the plaintiffs, and that the writ of attachment was issued in an action ex delicto, and not in an action founded on contract. The affidavit for the attachment is also made a part of the answer. In that, one of the plaintiffs states that Goggin was indebted to his firm in a specified sum, and that the same was due on an implied contract. The trial court gave judgment on the pleadings for the amount claimed in the complaint. There is no bill of exceptions, and it does not appear that any evidence was introduced by either party on the trial. The counsel on both sides have argued the case on the assumption that it appeared that Goggin, in the attachment suit, was charged with having converted to his use certain property belonging to the plaintiffs. No such fact, however, is shown by the record, but, if it were true, the plaintiffs might waive the tort and sue in assumpsit for the value of the property. It has often been decided by this court that where money is held and converted, or property has been wrongfully appropriated and sold, an action for money had and received will lie by the owner to recover it. Assurance Co. v. Towle, 65 Wis. 248, 26 N. W. Rep. 104. True, the attachment law is generally supposed to refer to claims founded upon contract, expressed or implied, but it has not been directly decided that it does not also apply to a claim on which an implied assumpsit will lie. It may be that the reasoning of Judge SMITH, in Elliott v. Jackson, 3 Wis. 649, is opposed to that view, but the point was not involved in the case. In Bank v. Fonda, 65 Mich. 533, 32 N. W. Rep. 664, the court held that a suit in attachment lies upon the implied assumpsit arising out of the embezzlement by a clerk of the money of his employer; that the case came within the language of the attachment law of that state. The attachment law of Michigan is like our own, and requires the affidavit to set forth that the indebtedness sued on is due upon contract, express or implied, or upon judgment. See, also, Assurance Co. v. Towle, supra. In Whereatt v. Ellis, 58 Wis. 625, 17 N. W. Rep. 301, the complaint alleged that the defendant had converted a portion of the crops to his own use but it was held that these words did not necessarily show that the cause of action was in tort; but it is not essential in this case to decide whether a party may waive the tort and sue by attachment for money actually held and wrongfully appropriated by another. It will be time to consider that question when fairly presented on the record. It may be that the complaint in the attachment suit alleged that Goggin had wrongfully converted to his use the property of the plaintiffs, and was guilty of a tort; but, as that complaint is not before us, we need not further dwell on what it is assumed to contain. But, where an attachment has in fact been issued, though irregular, and a party has given an undertaking for the value of the property seized on the writ of attachment, and such property has thereupon been delivered up to the defendant, the...