53 Wis. 560 | Wis. | 1881
Whether the affidavit offered in evidence was sufficient to justify the service of the attachment, is the only question presented upon this appeal. On the part of the learned counsel for the appellants it is contended, that the affidavit need not show upon its face,. when not made by the plaintiff, or, in a case like the present (where the plaintiff is a corporation and cannot make the affidavit in person), that the person making the same is either the agent or attorney of the plaintiff; or, in case the plaintiff is a corporation, that the person making the same is the agent, attorney or officer of the plaintiff, and makes the same on behalf of such plaintiff; and that, if either of these facts be disputed by the person againsf whom the writ is issued and served, it may be proved by evidence, as any other fact.
This action is not between the plaintiff in the attachment suit and the defendants therein, but between such plaintiffs and a third party claiming title to the attached property by convey-
Is an affidavit made by a person apparently a stranger to the'plaintiffs in the action, and which fails to state upon the face thereof any connection between the affiant and the plaintiffs, or that it is made on their behalf, a substantial compliance with the statute? We think, upon authority and principle, it must be held that it is not. This court has always held the proceeding by attachment a harsh proceeding,' and, as the statutes of this state have almost uniformly provided that it might issue upon an ex parte affidavit without the sanction of any judicial officer, it has also held that the requirements of the statute must be strictly complied with, otherwise the proceeding under it will be held void, especially as between prior purchasers from the defendant in such proceedings and the plaintiffs therein. Mayhew v. Dudley, 1 Pin., 95; Morrison v. Fake, id., 133; Jones v. Webster, id., 345; Slaughter v. Bevans, id., 348; Lathrop v. Snyder, 16 Wis., 293; Whitney v. Brunette, 15 Wis., 61; Quarles v. Robinson, 2 Pin., 97; Bowen v. Slocum, 17 Wis., 181; Talbot v. Woodle, 19 Wis., 174; Robertson v. Kinkhead, 26 Wis., 560; Howell v. Kingsbury, 15 Wis., 273; Miller v. Munson, 34 Wis., 579; Mairet v. Marriner, id., 582; Trowbridge v. Sickler, 42 Wis., 417.
The facts required to be shown by the affidavit are of such a nature as can only be known to and verified by the oath of the plaintiff or some one having the relation of attorney or agent, or, in case of a corporation, an officer. This fact alone
In Blaikie v. Griswold, 10 Wis., 293, this court held an affidavit, made under 'section 14, ch. 140, R. S. 1858, which stated on its face that the person making the same was the attorney of the plaintiff, was sufficient, although the statute required, as in the case of attachments, that it should be made by the plaintiff or some one in his behalf. The present chief justice, in passing upon that question, says: “Although the attorney does not state, in so many words, that he makes the affidavit on behalf of the plaintiff, yet he swears that he is one of the plaintiff’s attorneys in the action, and this fact discloses his means of information as to the precise amount
In the case of McCabe v. Sumner, 40 Wis., 386, which, like the last case cited, was a motion to set aside a judgment entered upon a warrant of attorney to confess judgment for irregularity, based upon the insufficiency of the affidavit required by said section 14, ch. 140, R. S. 1858, the late Chief Justice Evaít says: “And the affidavit which the statute requires is not a mere form, but goes to substantial rights of the parties. When the plaintiff himself makes the affidavit, it would probably be sufficient merely to state the amount due in the terms of the statute; because he is presumed to know the precise sum due upon the contract which he holds. But when some one else on his behalf makes the affidavit, we are inclined to think that the affidavit should disclose why it is not made by the plaintiff; and we are quite clear that it should state the means of knowledge of the person making it, within the rule of Crane v. Wiley, 14 Wis., 658. It is true that the statute does not in terms require this, as in the verification of a complaint; but the reasoning of that case applies as forcibly to the affidavit annexed to the complaint in cases of confession, and the necessity of a strict rule-is far greater. Without stating his means of knowledge, a person not a privy to the contract may well be presumed to found his affidavit upon the tenor and effect of the contract only; saying no more than the contract says as well or better, and giving no assurance to the court of the justice of the judgment, which the contract itself does not give. Such an affidavit, made by a stranger not disclosing his means of knowledge, has little significance. A reasonable effect must be given to the provisions of a statute, according to its object, and a mere literal compliance will not always do. The statute here requires an affidavit of one knowing the fact. And there is no presumption that a stranger knows the fact, unless he disclose how he came to know it.”
Although not necessary to the determination of this appeal, we are strongly inclined to think that when the affidavit in attachment proceedings is made by any other person than the plaintiff, the affidavit should not only state tb^t it is made on behalf of the plaintiff, but should, further state the relation of the party making the same to the plaintiff, and his knowledge upon the subject of the indebtedness of the defendant, as was held by this court in the case of the affidavit required upon the entry of judgment upon a warrant of attorney.
By the Gourt.— The judgment of the circuit court is affirmed.