Streissguth v. Reigelman

• Decision Date: 03 December 1889
• Citation: 75 Wis. 212,43 N.W. 1116
• Parties: STREISSGUTH ET AL. v. REIGELMAN ET AL.
• Court: Wisconsin Supreme Court

75 Wis. 212

43 N.W. 1116

STREISSGUTH ET AL.

v.REIGELMAN ET AL.

Supreme Court of Wisconsin.

Dec. 3, 1889.

Appeal from circuit court, Eau Claire county.

This action was brought against the principal defendant, Bessinger, pursuant to chapter 233, Laws 1880, (2 Sanb. & B. Ann. St. 1578,) on a demand not then due. An attachment was issued based upon an affidavit of the attorney for the plaintiffs, and the appellant, Samuel Reigelman, was summoned as garnishee. He answered denying any liability to the defendant. Plaintiffs took issue on such answer. Service of the summons upon the principal defendant, Bessinger, was made, or attempted to be made, by publication thereof. Judgment by default was rendered against Bessinger for the amount of plaintiffs' claim. Thereupon the issue in the garnishee action was tried, and the trial resulted in a judgment for the plaintiffs. The affidavit for the attachment is as follows: “T. F. Frawley, being duly sworn, says he is the attorney for the above-named plaintiffs, and makes this affidavit on their behalf. That the above-named defendant is indebted to the plaintiffs in the sum of one hundred and thirty dollars and fifty cents over and above all setoffs, and that the same is to become due upon contract, express or implied; and deponent has good reason to believe that the defendant has assigned, conveyed, disposed of, and concealed, and is about to assign, convey, dispose of, and conceal, his property with intent to defraud his creditors. That the defendant B. Bessinger fraudulently contracted the debt and incurred the obligation respecting which this action is brought. Deponent's knowledge of the said indebtedness of the defendant is founded upon the statement thereof received from the plaintiffs herein, and from statements made to affiant by one W. J. Carley, traveling salesman for said plaintiffs.” The garnishee defendant appeals from the judgment against him.James Wickham, for appellant.

T. F. Frawley, for respondents.

LYON, J., ( after stating the facts as above.)

The garnishee defendant may avail himself of any defect in the proceedings in the original action which operates to invalidate the judgment. Healey v. Butler, 66 Wis. 9, 27 N. W. Rep. 822.

It is settled beyond controversy that, under our attachment law,¹ the indebtedness of the defendant in the attachment must be positively stated by some affiant who has knowledge of the facts. Talbot v. Woodle, 19 Wis. 174, and cases there cited; Hawes v. Clement, 64 Wis. 152, 25 N. W. Rep. 21;Steam Heating Co. v. Sloteman, 67 Wis. 118, (128,)30 N. W. Rep. 241. Thus, in Talbot v. Woodle, an affidavit which stated the amount of the indebtedness on information and belief was held insufficient to...