Rosenthal v. Wehe

• Decision Date: 20 November 1883
• Citation: 58 Wis. 621,17 N.W. 318
• Court: Wisconsin Supreme Court
• Parties: ROSENTHAL AND OTHERS v. WEHE.

58 Wis. 621

17 N.W. 318

ROSENTHAL AND OTHERS

v.WEHE.

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Ashland county.

Appeal from an order sustaining a traverse to an amended affidavit upon which a writ of attachment had been issued. The original affidavit assigned as grounds for the attachment that the defendant has assigned, conveyed, disposed of, or concealed his property, or some part of it, or was about to do so, with intent to defraud his creditors. This affidavit was duly traversed by the defendant. Afterwards, by leave of court, and before trial of traverse, the plaintiffs substituted a new affidavit alleging the same grounds, and the additional grounds that the defendant fraudulently contracted or incurred the obligation for which the action was brought, and that all the facts therein alleged existed at the time of making the former affidavit. The substituted affidavit was also duly traversed by the defendant. The last-mentioned traverse was tried, and resulted in an order dissolving and vacating the writ of attachment. The testimony given on the trial is sufficiently stated in the opinion.Knight & Hayes, for appellants, L. Rosenthal and others.

Cottrill & Hanson, for respondent, A. M. Wehe.

LYON, J.

1. The amended or substituted affidavit for an attachment is permitted by Laws 1883, c. 249, § 4, if that statute applies to actions pending when it was enacted. That it does apply to such actions we cannot doubt. The statute relates only to the remedy in that it prescribes and regulates a mere matter of procedure; and in such matters a party has no vested right. The case in this particular is not distinguishable from Lee v. Buckheit, 49 Wis. 54, [S. C. 4 N. W. REP. 1077,] where a statute imposing additional terms, on granting a change of venue, was held applicable to an action pending when the statute was enacted. The principle of the two cases is the same.

2. It was objected on the argument that the substituted affidavit was not properly verified. It was sworn to before a notary public in Cook county, Illinois, and certified by him under his official seal. The seal does not appear in the printed case, and this omission may have led the learned counsel for the defendant to make the point. The affidavit is sufficiently attested under the requirements of Rev. St. § 4203, as amended by Laws 1883, c. 119. The amended statute is applicable to this case for the same reasons that chapter 249 is applicable.

3. Certain statements in writing made by the defendant to the plaintiff concerning his financial condition at the time, or a little before the debt in suit was contracted, were put in evidence and marked as exhibits. We find these exhibits in the record, and counsel raise no question of their identity. But counsel object that they are not attached to and made a part of the bill of exceptions, and hence that they cannot be considered on this appeal. The papers returned here are all attached together, and these exhibits, marked as indicated in the bill of exceptions, are the last papers in the file preceding the bill, and consequently are attached to it. But it is not stated in the bill that they are so attached. There are, however, so many and satisfactory...