Lathrop v. Snyder

16 Wis. 293

• Court: Wisconsin Supreme Court
• Decided: June 15, 1862
• Status: Published

Opinion

By the Court,

Dixon, C. J.

Appeal from an order overruling a motion to set aside a writ of attachment and all subsequent proceedings, for irregularity. The only question material to be noticed, arises upon the'sufficiency of the affidavit with respect to the amount of the indebtedness upon which the writ issued. The statute requires “ an affidavit, stating that the defendant named in such attachment, is indebted to the plaintiff, and specifying the amount of such indebtedness as near as may he, over and above all legal set-offs.” R. S., ch. 130, sec. 2. The words of the affidavit are, “ that the above named defendant is indebted to the above named plaintiffs in the sum of sixteen hundred and fifty-seven dollars and ninety cents, as near as this deponent can now estimate the same, over and above all legal set-offs." We are of opinion that the affidavit is defective. The statute gives no latitude of statement in the affidavit as to the amount due. Some fixed and definite sum, to which the affiant can positively, depose, must be named. In estimating the amount, so positively stated, the utmost exactness is not required. It may be a little more or a little less than the real amount without vitiating the proceedings, provided the sum be such that the affiant can conscientiously depose to its correctness. But the amount named must be certain, leaving no room for speculation on the face of the affidavit. Here it is not so, the affidavit establishes nothing positively. It is $1,657.90, “ as near as deponent can now estimate.” No means of knowledge, no sources of information are given. For any thing that appears, the indebtedness may be several hundred dollars less than the amount named, or it may be nothing, and still the affiant be innocent of perjury. Such an affidavit will not do. -

Order reversed, and cause remanded for further proceedin gs according to law.