64 Wis. 152 | Wis. | 1885
I. The moneys in the hands of the sheriff, being the proceeds of the sale of the attached property, are under the control of the court, and doubtless the court may inquire and determine who is entitled thereto, and order the same paid over to the person or persons so entitled. The procedure to that end, in form, is in the action of Hawes v.
II. The validity of the respondent’s attachment is impeached on two grounds. These are: (1) The respondent’s claim was of such a nature that an attachment could not lawfully issue in an action to enforce it; and (2) the affidavit annexed to the writ is insufficient to authorize the officer to execute such a writ.
1. The cause of action stated by the respondent in his action against Boyd is to the effect that in March, 1881, he delivered to Boyd goods, wares, and merchandise of the value of $7,81483 to be sold by the latter for him at Janes-ville ; that he (Havocs) agreed to and did furnish Boyd a salesman at his own expense, and agreed to and did pay one half of the rent of store and one half the cost of advertising ; that Boyd was to pay all the other expenses of making such sale, was to dispose of the stock to the best advantage, and, when sold, was to retain one half of the net profits accruing from the sale for his services therein, and was to
The complaint concludes with the following averments: “ This plaintiff further shows that he is unable to state what, if any, portion of said goods so delivered by this plaintiff to said defendant to be sold as aforesaid, remain unsold; and this plaintiff will be unable to state the exact amount till after he takes an inventory of the goods remaining unsold and belonging to this plaintiff; and this plaintiff further shows that the balance of said goods so delivered to said defendant and remaining unsold, or sold and unaccounted for, is the sum of $6,845.18, with interest from the said 14th day of July, 1884.” Judgment is demanded for the sum last named.
It is essential to a valid execution of a writ of attachment that the affidavit annexed thereto should state not only a statutory cause for issuing the writ, but also the amount of the defendant’s indebtedness to the plaintiff “ as near as may be, over and above all legal setoffs.” E. S. sec. 2731. The statement of the amount of such indebtedness is a most vital one. Eor the purposes of the execution of the writ it imports absolute verity, because it is not traversable in a proceeding by traverse to dissolve the attachment. E. S. sec. 2745. Such statement is the guide to the officer executing the writ as to the amount of property he ought to seize in order to secure the plaintiff. Hence it is required for the protection of the debtor, and of his other creditors as well.
Considering the importance of such statement, it necessarily and logically follows that if the cause of action be of such a character that it is impossible for the plaintiff or
Taking the most favorable view for the respondent, Hawes, of the transactions between himself and Boyd, and we have this state of facts: Hawes delivered his goods to Boyd, in trust that Boyd would sell them and pay over to him the proceeds of the sales, less one half the net profits. In stating the indebtedness, Hawes included nothing for profits. He merely claimed the value of the goods delivered to Boyd, less payments. "We may therefore exclude from consideration any question of the amount of profits. But in order to ascertain the amount of Boyd’s indebtedness to Hawes at any given time, it was necessary to know what amount Boyd had realized for such of the goods as he had theretofore sold. It was not sufficient to know merely what goods he had sold, for the value thereof is not the measure of his indebtedness. It is the amount realized which, under the contract mentioned in the complaint, measures the liability of Boyd. Hence, before Hemes, or any one for him, could state the amount of Boyd’s indebtedness, it was necessary to have an accounting of the goods sold and the prices realized therefor. Because the respondent’s attachment was- sued out and executed before any such accounting was had, and before he or his agent knew, or could know, the amount of Boyd’s indebtedness (all which sufficiently appears in the complaint in that action), it must be held B-.-J. Ur- respondent obtained no lien upon the property atrae;: on, as ag;;i?.'.t the appellants, who subsequently attached the same prope:-:y.
2. Inasmuch as our conclusion on the other point is decisive of the appeal the objections to the sufficiency of the affidavit will be very briefly discussed. The indebtedness of Boyd is thus stated therein: “ That the above-named defendant, J. J. Boyd, is indebted to the said plaintiff in a sum
In the discussion of the other branch of the case the necessity of stating in the affidavit the amount of the indebtedness for which the writ issues is asserted. True, the statute provides that it is to be stated “ as near as may be,” and this court has sanctioned the use of that phrase in the affidavit. Oliver v. Town, 28 Wis. 328; Mairet v. Marriner, 34 Wis. 582. But it was held in Oliver v. Town that the phrase introduced no element of uncertainty in the affidavit in respect to the indebtedness or the amount of it. To the same effect is the reasoning of Chief Justice Dixon in Lathrop v. Snyder, 16 Wis. 293. "We entertain no doubt that perjury may be well assigned on an affidavit to procure the execution of a writ of attachment in which it is alleged the defendant is indebted in a sum specified “ as near as may be.”
The affidavit under consideration states the indebtedness at a sum certain “ as near as may be, . . . and as this plaintiff is able to determine.” It is obvious that the meaning of the last sentence is “ as near as this plaintiff is able to determine.” The question is, Does the insertion of this phrase in the affidavit introduce an element of uncertainty in respect to the amount of Boyd’s indebtedness to Hawes? We think it does. BTeither Hawes nor his agent who made the affidavit knew the amount of such indebtedness. The statement in the affidavit of the amount thereof was, as we have seen, necessarily a mere estimate, and subsequent events showed it to bo a very wild one, for it included the value of goods to the amount of $5,000, which Boyd had not sold,
3. The ground for the attachment is stated in the affidavit to be that Boyd has absconded from this state. This is claimed to be an insufficient statement, because it is not also averred that he so absconded to the injury of his creditors. The question of the sufficiency of the affidavit in this particular elicited much subtle argument. Its solution depends upon the construction of subd. 1, sec. 2731, R. S.
It was stated in argument that other litigation is now pending between some of these parties in which it is claimed that Hawes and Boyd were partners, made such by the terms of the contract above mentioned. This is referred to only as a reason for saying that nothing herein contained is to be construed as an intimation of opinion on that subject, one way or the other.
It results from the views above expressed that the order of the circuit court, that the respondent’s judgment and execution be first paid out of the moneys in the hands of the sheriff, must be reversed, and the cause remanded with directions that such moneys be first applied in satisfaction of the appellants’ judgments and executions in due order of priority.
By the Court.— It is so ordered.