Streissguth v. Reigelman

43 N.W. 1116, 75 Wis. 212, 1889 Wisc. LEXIS 36

• Court: Wisconsin Supreme Court
• Decided: December 3, 1889
• Status: Published

Opinion

LyoN, J.

The garnishee defendant may avail himself of any defect in the proceedings in the original action which operates to invalidate the judgment. Healey v. Butler, 66 Wis. 9.

'It is settled beyond controversy that, under our attachment law,¹ the indebtedness of the defendant in the attachment must be positively stated by some affiant who has knowledge of the facts. Talbot v. Woodle, 19 Wis. 174, and cases there cited; Hawes v. Clement, 64 Wis. 152; Eureka S. H. Co. v. Sloteman, 67 Wis. 118, 128. Thus, in Talbot v. Woodle, an affidavit which stated the amount of the indebtedness on information and belief was held insufficient to support an attachment.

The affidavit in the present case states, in form, the amount of the indebtedness positively, and if it stopped there would be sufficient. But it proceeds to state, in substance, that the only knowledge which the affiant had on the subject was what the plaintiffs and their agent told him. It amounts to no more than a statement that the plaintiff and his agent told the affiant the defendant was indebted to the plaintiffs in the sum therein named. Hence the affidavit is entirely insufficient to support the attachment.

In an action brought upon a demand not due, a valid attachment is essential to the maintenance of the action. Failing the attachment, the action necessarily abates. It was so held in Gowan v. Hanson, 55 Wis. 341, and nothing need be added to what was there said by the chief- justice on that subject. It follows that the judgment against the principal defendant is invalid.

Sec. 2766, R. S., provides that, “when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action.” In the present action the plaintiffs had no valid judgment in the principal action when the trial of the issue was had in the garnishee action, and when judgment against the appellant was rendered therein. It follows that the garnishee judgment is erroneous and must be reversed.

Man}*- other errors are" assigned as grounds for a reversal of the judgment, but it is unnecessary to discuss them here. The same errors are assigned in the case of Frisk and others against these defendants, decided herewith, and they are considered in that case. See post, p. 499.

By the Court.— Judgment reversed.

¹

R. S. sec. 2731.