Cooper v. Smith

8 Wis. 358 | Wis. | 1859

By the Court,

Smith, J.

This is an appeal from an order of the circuit court of Dane county, setting aside an attachment. The ground of the application for the writ of attachment as disclosed by the record was, that the defendant named therein, was at the time of issuing the writ a non-resident of this state.

The affidavit on which the writ was issued, sets out that the defendant was a non-resident of the state and could not be found therein; and after setting out the indebtedness of the defendant to the plaintiffs, it further alleges, on information and belief, that the defendant resides in Sweden, &c.; that his place of residence is neither known to the affiant, nor can with reasonable diligence be ascertained by him; and that the defendant has property in the state, &c.

In May term, 1858, an order was made by the judge, requiring the plaintiffs, upon the affidavits presented, to show cause why the attachment should not be discharged, on the ground that sufficient cause for the issuing of the same did not exist. After hearing the plaintiffs as well as the defendant, the court below discharged the attachment.

We are of the opinion that the court below rightfully discharged the attachment, for the reason that the evidence produced upon the hearing or the rule to show cause, clearly establishes the fact that the defendant was in fact a resident of the state at the time the writ issued, and that he was only temporarily absent; that he left the state animus revertendi ; that he was detained in Sweden on business, and purposed to return as soon as that was accomplished.

The order of the circuit court must therefore be affirmed with costs, and the cause remanded for further proceedings according to law.