136 Wis. 608 | Wis. | 1908
This action was commenced by writ of attachment in justice’s court based npon the nonresidence of defendant. Certain property was seized. The defendant appeared and answered in justice’s conrt, and after a trial that court gave judgment against him, from which he appealed to the circuit court, where he moved that the action be dismissed because the justice did not have jurisdiction of the subject matter of the action on account of a defect in the affidavit for attachment. This affidavit is conceded to be defective, because the requisite facts were stated only upon hearsay evidence, within the rule of Streissguth v. Reigelman, 75 Wis. 212, 43 N. W. 1116. Plaintiff moved for leave to amend this affidavit, and the circuit court denied the motion of the defendant and granted this motion of the plaintiff. Exception was taken to this ruling, and the parties went to trial upon the merits before the circuit court, where the plaintiff had judgment for $102.67 damages and $59.18 costs, $30.55 of which were costs for taking and beeping the attached property in justice’s court, and $12.03 of which were the other costs taxed in justice’s court. Upon taxation of costs before the clerk of the circuit court he allowed this item of $30.55 above mentioned and disallowed the $12.03. Each party moved the court to review the taxation of the clerk and that court allowed both items, or $42.58 for costs in justice’s court.
The form for warrant of attachment in justice’s court is prescribed by sec. 3704, Stats. (1898), and consists of a com
The respondent points out that now, by the last subdivision of sec. 3702, Stats. (1898), the affidavit for attachment is amendable, “and the new affidavit shall stand in lieu of the original one for all purposesthat upon attachment in circuit court the affidavit is amendable, and “the new affidavit shall stand in lieu of the old one for all purposes” (sec. 2731a.) ; that by sec. 3768, Stats. (1898), this action was to
“Any person may commence an action by warrant of attachment ... in the cases, upon the condition and in the manner provided by this chapter.” Sec. 3701, Stats. (1898).
“Before a warrant of attachment shall be issued the plaintiff or some person in his behalf shall make and file with the justice an affidavit stating,” etc. Sec. 3702, Stats. (1898).
Leaving these provisions intact, the legislature declared by ch. 134, Laws of 1893 (last part of sec. 3702, Stats. 1898), first, that this affidavit might be amended at any time before trial by the substitution of a new affidavit; second, this new affidavit should contain allegations of facts existing at the time of making the former affidavit; third, that the new affidavit should stand in lien of the original affidavit for all purposes. The necessary effect of this amendment was to make the jurisdiction of the justice depend, not upon a preliminary showing of fact, biit upon the actual existence of the facts upon which jurisdiction' was made to rest, and these facts might be shown at any time before trial, provided they existed at the time the original and insufficient affidavit was first presented to the justice.
In the case at bar there was no sufficient affidavit originally presented to the justice, nor was there any amended affidavit filed in justice’s court before trial. But within the time allowed for filing the amended affidavit — that is to say, before trial, and while the justice had jurisdiction to entertain the cause and allow the amendment — the defendant appeared generally in the case and went to trial without objecting to the attachment on this ground. This may be considered an admission of the existence of the facts upon which jurisdiction to issue the writ rested.
Construing all the provisions of this statute together, namely, those making the presentation of the affidavit in the first instance a condition precedent to the exercise of the ju
By the Ooiurt. — Judgment affirmed.