Maguire v. Bolen

94 Wis. 48 | Wis. | 1896

Cassoday, C. J.

1. The affidavit for the writ of attachment in favor of Tuck & Sons is insufficient to meet the requirement of the statute under which it was made. E. S. sec. 3702. That statute prohibits the issuing of the warrant before “ the plaintiff or some person in his behalf shall make and file with the justice an affidavit ” as therein required. The affidavit made and filed with the justice in the Tuck case recites that the affiant “for and on "behalf of the firm of Eaphael Tuck & Sons, hereinafter named, being duty sworn, on oath doth say,” etc., but such recital is not sworn to, and the affidavit is, therefore, insufficient under the statute. Miller v. C., M. & St. P. R. Co. 58 Wis. 310; Detroit Safe Co. v. Kelly, 78 Wis. 134. The proceeding thus given by statute is a harsh remedy, and to give the justice jurisdiction the requirements of the statute must be strictly coinplied with. Steen v. Norton, 45 Wis. 412; Rasmussen v. McCabe, 46 Wis. 600; Edler v. Hasche, 67 Wis. 653. It follows that the trial court properly held that the attachment in that case was void. Such void attachment was not made valid by the subsequent rendition of judgment in that case. R. S. secs. 2741, 2749, 3710.

2. As indicated in the statement, the attachment in favor of Kinley Manufacturing Company was only for $89.52,— the exact amount named in the affidavit therefor. Subsequent, and after the defendant, as sheriff, had levied the attachment and seized the property under the attachment in favor of the IT. H. West Company, the Kinley Manufacturing Company amended its affidavit for attachment and its attachment by increasing the amount therein as indicated, but such increase could not prejudice or supersede the attachment and levy in favor of the H. H. West Company, and the trial court properly disallowed such increase. Whitney v. Brunette, 15 Wis. 61; Drake, Attachment, § 282.

3. It is strenuously contended that the circuit court never got jurisdiction in the attachment suit in favor of the IT. H. West Company for want of service upon Lade and otherwise. The attachment was issued, the levy made, and the property seized thereon by the defendant, as sheriff, September 2,1891. The papers are apparently in the statutory form. The statute declares that from the time of the issuance of a provisional remedy the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings therein. R. S. sec. 2629. There can be no question but that a writ of attachment is an ancillary or provisional remedy, and property may be levied upon and seized thereon before the actual service of the summons, in case it is issued and placed in the hands of the officer with a bona fide- intent that it shall be served. Bell v. Olmsted, 18 Wis. 69; Cummings v. Tabor, 61 Wis. 185; Evans v. Virgin, 69 Wis. 159, 160; Cox v. North Wis. L. Co. 82 Wis. 144, 145. “Its office is to seize and hold such property as would be liable to execution in the principal action until a judgment can be recovered therein, and an execution issued thereon.” Id. Such seizure is in the nature of a proceeding in ram, and becomes the basis of a subsequent service by publication. Id. It gives the court jurisdiction over the property seized, and the control of all subsequent proceedings thereon. Id.; E. S. sec. 2740. Under that section the court, in the cases therein prescribed, had the legal right by order, as it did, to direct the sale of the property so attached in such manner and upon such time and terms as the best interests of the parties demanded, and that the sheriff hold the moneys realized thereon in lieu of the property sold, subject to the further order of the court. Of course to authorize the H. H. West Company to take and appropriate to its own use the proceeds of the sale, or any part thereof, it was necessary that the summons should be served within a reasonable time; but the section cited authorized the court, upon proper application and sufficient showing, and without waiting for such service, to direct the sale immediately. Such order protected the sheriff, but did not affect the legality, of the seizure. Sterling v. Ripley, 3 Pin. 155. The sheriff was the agent of both parties, and answerable to both. Starr v. Moore, 3 McLean, 354. The legality of his levy and seizure must be determined by the condition of things at the time they were made.

In the case at bar the levy and seizure made by the defendant, as sheriff, was necessarily subject to the valid attachments in the hands of the plaintiff as constable. As. indicated in the statement, the judgment of the trial court gave to the plaintiff, as such constable, so much of the proceeds of the sale of the property as was necessary to satisfy all the valid liens which the plaintiff held against the property. This is all the plaintiff could reasonably claim. He-was not liable to any one, except as to the valid liens hell eld upon the property, and those liens were fully protected by the judgment in his favor. Gage v. Allen, 84 Wis. 323; Bleiler v. Moore, 88 Wis. 438. The plaintiff, therefore, had no further interest to subserve by continuing the controversy. The question whether the H. IT. West Company has, by reason of its failure to serve the summons within a reasonable time, lost its right to have its lien paid out of the balance • of such proceeds, after satisfying such valid claims in the hands of the plaintiff, as such constable, is not bpfore us for consideration, since this record fails to show that the plaintiff has any right or interest in such balance of the proceeds. Such balance of the proceeds must eventually be disposed of by order of the court; and the defendant, as sheriff, is answerable to the party entitled.

As to the right to amend an affidavit for attachment, see note to Heidel v. Benedict (61 Minn. 170) in 31 L. R. A. 423. — Rep.

By the Oo%vrt.— The judgment of the circuit court is affirmed.

A motion to offset the costs recovered in this court against part of the judgment recovered in the court below was granted November 24, 1896.