99 Wis. 235 | Wis. | 1898
The amended or substituted affidavit for the attachment wholly failed to state any cause or ground for attachment for a debt not already due. The only ground alleged was the nonresidence of the defendant, which, in the case of a debt not already due, will not suffice. S. & B. Ann. Stats, sec. 2731. The plaintiffs’ duly verified complaint shows that the goods constituting the cause of their demand were-sold July 1, 1897, on a credit of sixty days, and the original affidavit for attachment states that their said demand is founded on express contract. The verified bill of particulars delivered under their complaint November 5, 1897,. shows that the goods in question were sold on credit, on dates named therein, running from July 7, 1897, to September 25, 1897, amounting to $1,303.28, and that $1,300.30 was
The plaintiffs’ complaint and the bill of particulars delivered under it, for the purposes of this motion, must be regarded as prima faeie evidence against the plaintiffs of the facts thus stated. They constitute a statement of the nature, character, and extent of their claim, and are in the nature of solemn judicial admissions by the plaintiffs, and may properly be regarded &s prima facie competent evidence against them, when relevant upon a trial, or as a foundation for a motion. Cook v. Barer, 44 N. Y. 156. This was so regarded, in respect to a motion to set aside an attachment, in Hubbard v. Haley, 96 Wis. 578, without special discussion of the point; but we regard the position as correct, and important to the due and convenient administration of justice. It was properly shown, therefore, that the debt in this case was for goods sold by express contract, and that the debt was not due when the action was commenced and the attachment was executed. The plaintiffs had brought their action, and obtained an attachment, for a debt not then due, and without complying with the statute in such case, requiring the usual undertaking to be conditioned in three times the-amount demanded. S. & B. Ann. Stats, sec. 2731.
October 1st the plaintiffs filed another affidavit, with a notice annexed, that it was “ by way of amendment of, and a substitute for, the original affidavit annexed to the writ of
The original affidavit for attachment charged, also, as a ground therefor, that the defendant fraudulently contracted the debt or obligation respecting which the action was brought, although the debt was not then due. Had the plaintiffs given the requisite undertaking in such a case, conditioned in three times the sum demanded, it would seem that no objection to the validity of the attachment upon the face of the proceedings would have existed. It is true that the plaintiffs would have been bound, on a traverse, to prove the truth of the ground thus laid for the writ; and in any of the different forms in which they urge their demand, which was substantially the same demand upon express contract, though not then due, upon which the plaintiffs commenced their action, they would doubtless be bound, as a condition of recovery, to prove the fraud, on which they rely. Having obtained their attachment without complying with the terms of the statute in respect to an indispensable condition of granting it, particularly in respect to the undertaking in three-times the amount demanded, they proceeded to adapt the condition and character of their demand, if possible, to the proceeding instituted, in order to justify and sustain it, without giving the required security. First, it is said, they disaffirmed the express contract of sale, for
The defendant’s motion to set aside and vacate the attachment issued should have been granted, and it .was error to order said attachment proceedings to be continued.
By the Court.— The order of the circuit court appealed from is reversed, and the cause remanded with directions to dismiss and vacate the attachment.