8 Wis. 327 | Wis. | 1859
By the Court,
The order of the court below must be reversed.
The affidavit of the complainant upon which the motion for the order was founded, discloses no facts which warrant the order made by the court.
The complainant merely alleges that Bartlett, who claimed to act as the agent of Cushing, Treadwell and other persons unknown to him, came to his residence at the Falls of St. Croix, on the fifth day of October, A. D. 1854, and entered upon and took possession of the real estate, mills and fixtures belonging thereto, together with the crops growing and gathered, and expelled the deponent, his family and servants; that the deponent has been informed that Cushing and those acting for him pretend to have acted under and by virtue of a writ of assistance heretofore issued by the clerk of the said court3 that the deponent believes he has an interest in the real estate, mills and fixtures of the value of about one hundred and fifty thousand dollars; that he believes the same will not be safely, prudently and economically conducted and managed by said Cushing and his agents, and that he believes the persona] property is of the value of about fifteen hundred dollars.
It will be seen that the affidavit discloses no cause whatever for requiring additional security from Cushing, into whose possession the property passed; except the fact that
The writ of assistance mentioned in the affidavit by virtue of which the agents of Cushing took possession of the property, was undoubtedly issued by the clerk of the circuit court for Dane county, in obedience to a writ of mandamus issued from this court. See the case of Attorney General ex rel. Cushing vs. Lum, 2 Wis., R. 507. It appears from an examination of that case, that the reason why the mandamus to compel the clerk to issue the writ of assistance was awarded, was the existence of an order of the circuit court for Green county, in which the case was then pending, by which Cushing was let into the possession of the property upon giving the security fixed in the order.
It is apparent that Cushing is lawfully entitled to the possession of the property, so long as that order is in full force, and it is equally clear that the court ought not to require him to give additional security beyond that fixed in the order, without having some facts brought to its knowledge, to show that the security already given is inadequate.
But the court below decided that additional security should-be given, without even a suggestion that the security given was insufficient, or that the property would be wasted or destroyed by Cushing or his agents. The complainant-states merely that he believes the property will not be safely, prudently and economically conducted and managed by Cushing and his agents. This is not the statement of any fact which could be controverted by Cushing, and is entirely insufficient to warrant, the order which was made.
The view which I have taken of the matter renders an examination of the affidavits filed to resist the motion unnecessary. Order reversed.
