Bowen v. Slocum

17 Wis. 181 | Wis. | 1863

By the Court,

PAINE, J.

The court below dissolved the attachment for defects in the affidavit attached to the writ. The appellants contend that this was error, for the reason that even the entire absence of an affidavit would not constitute such an irregularity as would justify setting aside the attachment.

The argument is based upon the change of the law effected by chapter 101, Laws of 1859. The Revised Statutes, chap. 130, sec. 2, had previously required the affidavit to be made before the writ was “issued.” By the amendment the word “ issued ” is stricken out, and the word “ executed ” substituted for it. Then in section 5 of the amendatory act, it is provided that the writ may be dismissed on motion if the judge shall determine that it was “ irregularly obtained or issued.” Upon these changes the appellant contends that the legislative intent appears to allow the writ to be issued without any affidavit, and that as it is to be set aside only for irregularity in “obtaining” or “issuing” it, therefore it ought not to be set aside for irregularity in executing it. As a mere question of verbal criticism and interpretation there is some force in this reasoning. But it is hardly probable that by this mere change of language the legislature intended to allow these writs to be executed without any affidavit at all. It may have been supposed more convenient in some cases to allow the party to obtain the writ without previously making the affidavit. But the fact that the necessity for the affidavit still remains, and that it is made a condition precedent to the execution of the writ, shows that there was no design to dispense with it. And when in section 5 they speak of setting aside the writ for irregularities in “ obtaining or issuing it,” they must be held to include in the word “obtaining” at least, all the steps necessary to the procurement of a writ authorized to be executed.

The question then remains, whether this affidavit was sufficient. The statute requires the affidavit to “state,” among other things, that the defendant is “ indebted ” to the plaintiff, “ and that the same is due upon contract express or implied,” &c. This affidavit states the indebtedness, and that it was for goods sold. And the appellant contends that although there is no express statement that the indebtedness was upon contract, yet the facts stated show that it was, and this is a substantial compliance with the statute. Perhaps this position could be sustained ; but it is not necessary to determine the point here. But there is nothing in the affidavit stating or showing that the debt sued for is “ due." The appellant urges that the words “due upon contract,” &c., were intended only to require the party to show that the debt arose upon contract. But although that was clearly a part of the intention, it cannot be assumed to have been the whole. The word “ due ” has a well defined meaning, when applied to indebtedness, which is, that the day when payment ought to have been made has already arrived. In view of this fact, and of the fact that several states have enacted special provisions, allowing attachments in certain cases before the debts sued for are due, it would seem that the only interpretation which can give full effect to the language of our statute, is, that it requires the affidavit to show, not only that the debt arose upon a contract, but also that it was due.

The affidavit in this case might be literally true, although the debts claimed were, by the express agreement of the parties, not payable until long after the affidavit was made. The party making it could, therefore, not have been indicted for perjury, although he knew such to have been the case. And it was the design of the law, before it would allow this summary, and sometimes severe and destructive remedy, to be used, to require all the facts showing a present right to use it to be stated upon oath.

For these reasons the attachment was properly set aside; and the order is affirmed, with costs.