Mairet v. Marriner

34 Wis. 582 | Wis. | 1874

LyoN, J.

This an appeal from an order of the circuit court setting aside a writ of attachment which had been theretofore issued in the action, and by virtue of which the property of the defendants had been seized by the sheriff. The order was made upon the ground that the affidavit for the writ is fatally defective. Such affidavit was made by one of the plaintiffs, and states that the defendants are justly indebted to the plaintiffs in the sum of $911.95, “ as near as may be,” etc., and further, that the affiant “ knows, or has good reason to believe,” that the defendants have made or are about to make a fraudulent disposition of their property.

The objection to the sufficiency of the affidavit because the statemént therein of the indebtedness of the defendants is qualified by the words "as near as maybe” is determined adversely 'to the defen'dants in the case of Oliver v. Town, 28 Wis., 329, and requires no further consideration.

• The only other objection taken to the affidavit is based upon the use of the words “ knows or has good reason to believe,” in the connection just stated. In this respect the affidavit is in the words of the statute which requires it to be made and annexed to the writ of attachment. R. S., ch. 130, sec. 2. In Miller v. Munson [ante p. 579], we had occasion to determine in what cases an affidavit for an attachment, which is in the language of the statute, should beheld sufficient The'conclusion there was, that such an affidavit is sufficient if perjury may be assigned upon it in case it is false. This affidavit, at the very least, contains a positive statement that the affiant, when he made it, had good reason to believe that the defendants had made, or were about to make, a fraudulent disposition of their “property with intent to defraud their creditors. Now if it can be proved that affiant knew, when be made tbe affidavit, that such statement was false, there is no difficulty in framing an indictment or information against him, and assigning perjury on the affidavit. Hence, within the rule .established in Miller v. Munson, the affidavit is sufficient.

■ It follows that the order of the circuit court must be reversed ; and as the original papers were sent up on the appeal, the cause must be remanded for further proceedings according to law.

By the Court. — It is so ordered.