I. L. Lamm Co. v. Peaks

156 N.W. 194, 162 Wis. 289, 1916 Wisc. LEXIS 138

• Court: Wisconsin Supreme Court
• Decided: February 1, 1916
• Status: Published

Opinion

Makshall, J.

The only authority for the maintenance of an action to recover a debt, not due, is found in sec. 2131, Stats., which requires, as a condition of such maintenance, the issuance of a writ of attachment upon an undertaking in three times the amount of the demand. It is conceded that such an undertaking was not given, but is suggested that the remedy of the defendants was by plea in abatement. The case not being one where there was a complete cause of action when the summons was served, but something was required to be done as a condition of enforcing it, a motion in the action to vacate the proceedings was proper. So ruled in Lombard v. McMillan, 95 Wis. 627, 634, 70 N. W. 673.

That the giving of the undertaking required by sec. 2731 was an absolute condition of the right to maintain the action, and in absence thereof that it was proper for the court to dismiss it and vacate all proceedings had therein, is ruled by Gowan v. Hanson, 55 Wis. 341, 13 N. W. 238, and Streissguth v. Reigelman, 75 Wis. 212, 43 N. W. 1116.

In the first case cited, this court held that “the giving of an undertaking for three times the amount demanded is as essential to the right to maintain the action as the making of the affidavit. Both things are absolutely necessary and requisite where the debt is not due, and the omission of either is fatal to the action,” and that the circuit court should have dismissed the suit on defendant’s motion.

It follows that no error was committed in vacating the judgment and attachment proceedings.

By the Court. — The order is affirmed.