We are inclined to agree with the learned counsel for defendant that a writ of attachment issued in
The writ of attachment is a provisional remedy in a personal action, given in certain cases to secure to the plaintiff the fruits - of his judgment in the action, if he recovers judgment therein. It may be issued “ either at the time of the issuing of the summons in the action, or at any time thereafter before final judgment.” Sec. 2730, E. S. No authority is given to issue it at any other time or under any other circumstances than is thus prescribed in the statute. It would seem, therefore, that the writ is only given in actions commenced by summons in the court out of which the writ issues. It is very clear that the writ can only issue in actions ex contractu for the recovery of money.' If issued in any other form of action, as in an action of tort, the attachment proceedings would be a nullity. Should it be conceded that an attachment may issue in an action ex contractu for the recovery of money pending in the circuit court on appeal from the judgment of a justice, when the case may be tried de novo on the appeal, it would not follow that the writ might properly issue in the appeal in Becker v. Zechman, for-the issue on that appeal is whether error prejudicial to the plaintiff has intervened which will save him from being bound by the judgment of the justice, and allow him to institute another action on his original claim, which presumably is for a larger sum than he recovered. That action on appeal, therefore, is not an action ex contractu to recover money. In determining it the court can only affirm or reverse the judgment of the justice. E. S. secs. 3767-3769. The appeal merely performs the functions of a writ of error or certiorari, presenting only questions of law, and cannot properly be said to be an action ex contractu to recover money. It is impossible to find in the statute any author
But it does not necessarily follow that such undertaking, as against the surety therein, is also a nullity. It was voluntarily entered into by defendant for the purpose of procuring the seizure of plaintiff’s property under the writ of attachment, and it accomplished that result, to the great damage, and injury of plaintiff. It turns out that the writ was invalid, and so the attachment was dissolved. The giving of the undertaking by defendant caused the mischief complained of. "Why should he be relieved from liability merely because the seizure of plaintiff’s property he thus procured to be made was illegal? It seems to us that such illegality is an unanswerable reason why he should be held liable. The cases' of Love v. Rockwell, 1 Wis. 382, and Billingsley v. Harris, 79 Wis. 103, are directly in point here. In the last of these cases it was held that “ parties who sign an undertaking for the discharge of property seized by virtue of attachment are estopped in an action thereon to deny the regularity of the attachment.” The decision in that case rests iipon the decision in Love v. Rockwell, in which it was held that a party is not permitted to contradict his own recognizance of appeal after he has obtained the- delay contemplated by the appeal.
Counsél for defendant, in his able argument, relies upon the case of Shevlin v. Whelen, 41 Wis. 88, as authority for holding the undertaking in suit void. For reasons stated by Cole, C. J., in Billingsley v. Harris, which need not be here repeated, Shevlin v. Whelen does not rule this case. It may be observed generally, however, of the case last cited, that the undertaking was given to prevent the execution of void process which ought to be avoided, while here, as, in the other cases above cited, the undertaking was
Without going into any extended discussion of the numerous cases cited by counsel to sustain their respective positions, we think those cited to the proposition that the undertaking in suit is void will generally be found to be' cases in which the undertakings were given to prevent the enforcement of void process, while in those cited to the contrary the undertakings were given to procure the enforcement of void process. As already observed, this case belongs to the latter class, and the surety in the undertaking in suit cannot be heard to assert the invalidity of his undertaking-after it has caused the execution of void process to the injury of plaintiff.
We conclude that the undertaking is valid although the attachment is void, and hence the answer alleging the invalidity of the attachment as the sole defense to the action fails to state a defense. It follows that the demurrer to the answer was properly sustained.
By the Court.— Order affirmed.