Wiley v. C. Aultman & Co. & Another

• Decision Date: 13 December 1881
• Citation: 11 N.W. 32,53 Wis. 560
• Parties: WILEY v. C. AULTMAN & CO. AND ANOTHER.
• Court: Wisconsin Supreme Court

53 Wis. 560

11 N.W. 32

WILEY

v.C. AULTMAN & CO. AND ANOTHER.

Supreme Court of Wisconsin.

Filed December 13, 1881.

Appeal from circuit court, Waushara county.

R. L. D. Potter and T. H. Walker, for respondent.

Waring & Ryan and Ryan & Brown, for appellants.

TAYLOR, J.

This is an action of trespass, for the wrongful taking and conversion of personal property. The defendants alleged that the property in question was the property of one Chamberlin and Schenck, and that they had seized the same upon an attachment issued in favor of the defendants C. Aultman & Co., a corporation of that name, and against the said Chamberlin and Schenck. The defendant Porter was the sheriff who executed the writ of attachment. The plaintiff claimed the property under a chattel mortgage from the defendants in the attachment, executed before the seizure upon the attachment. The defendants and appellants alleged that such mortgage was fraudulent and void as to the creditors of the mortgagors.

On the trial the defendants, to prove their justification for the taking and conversion of the property, offered in evidence a writ of attachment issued in favor of the C. Aultman & Co. Company against the mortgagors of the plaintiff, and a seizure of the property under such writ by the defendant Porter. They also gave some evidence tending to show that the mortgage given to the plaintiff was fraudulent and void as to the creditors of Chamberlin and Schenck. The writ of attachment and all proceedings thereunder were excluded by the court because the affidavit attached to the writ was insufficient to justify the officer in executing the same.

Section 2731, Rev. St. 1878, provides that “before any writ of attachment shall be executed, the plaintiff, or some one in his behalf, shall make and annex thereto an affidavit stating that the defendant named in such writ is indebted to the plaintiff in a sum exceeding $50, and specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs, and that the same is due upon contract, express or implied, or upon judgment or decree, and containing a further statement that the deponent knows, or has good reason to believe, either.” Then follow seven cases for issuing the attachment, one or more of which must be set out in the affidavit.

In the affidavit made in this case the second cause was assigned as the ground for issuing and serving the attachment. The affidavit was perfect in the form prescribed by the statute, except that it was not made by the plaintiff in the action; nor does it appear, upon the face of the affidavit made, that the person making the same was an agent or attorney, or an officer of the plaintiff, or that it was made on behalf of the plaintiff. The plaintiff, as is alleged in the complaint in the attachment action, was a corporation duly incorporated under the laws of this state. The court below held that the affidavit was insufficient to justify the officer in serving the writ, and rejected the writ and all proceedings under the same, holding that such proceedings were void for want of a sufficient affidavit. Whether the affidavit offered in evidence was sufficient to justify the service of the attachment, is the only question presented upon this appeal. On the part of the learned counsel for the appellants it is contended that the affidavit need not show upon its face, when not made by the plaintiff, or in a case like the present, where the plaintiff is a corporation and cannot make the affidavit in person, that the person making the same is either the agent, attorney, or officer of the plaintiff; or, in case the plaintiff is a corporation, that the person making the same is the agent, attorney, or officer of the plaintiff, and makes the same on behalf of such plaintiff; and if either of these facts be disputed by the person against whom the writ is issued and served, it may be proved by evidence, as any other fact.

This action is not between the plaintiff in the attachment suit and the defendants therein, but between such plaintiffs and a third party claiming title to the attached property by conveyance from such defendants. It becomes necessary, therefore, that the parties claiming under the attachment should show that the service of the writ was authorized when made, such service being the wrongful taking complained of by the plaintiff in the action. To justify the taking by the defendants upon their writ, it is clearly necessary that the affidavit required by the statute must be made and attached to the writ, otherwise no service of the writ can be justified. See section 2731, above cited.

Is an affidavit made by a person apparently a stranger to the plaintiffs in the action, and which fails to state upon the face thereof any connection between the affiant and the plaintiffs, or that it is made on their behalf, a substantial compliance with the statute? We think, upon authority and principle, it must be held that it does not. This court has always held the proceeding by attachment a harsh proceeding, and, as the statutes of this state have almost uniformly provided that it might issue upon an ex parte affidavit without the sanction of any judicial officer, it has also held that the requirements of the statute must be strictly complied with, otherwise the proceeding under it will be held void, especially as between prior purchasers from the defendant in such proceedings and the plaintiffs therein. Mayhew v. Dudley, 1 Pin. 95;Morrison v. Fake, Id. 133; Jones v. Webster, Id. 345; Slaughter v. Bevans, Id. 348; Lathrop v. Snyder, 16 Wis. 293;Whitney v. Brunette, 15 Wis. 611; Quarles v. Robinson, 2 Pin. 97;Bowen v. Slocum, 17 Wis. 181;Talbot v. Woodle, 19 Wis. 174;Robertson v. Kinkhead, 26 Wis. 560;Howell v. Kingsbury, 15 Wis. 273;Miller v. Munson, 34 Wis. 579;Mairet v. Marriner,Id. 582;Trowbridge v. Sickler, 42 Wis. 419.

The facts required to be shown by the affidavit are of such a nature as can only be known to and verified by the oath of the plaintiff or some one having the relation of attorney or agent, or in case of a corporation, an officer. This fact alone suggests the propriety of the requirement in the statute that the affidavit must be made by the plaintiff or some one in his behalf who has knowledge of the fact required to be stated in the affidavit. It is true, the statute does not in express terms say that the affidavit shall be made by some one...