Trautmann v. Schwalm

50 N.W. 99, 80 Wis. 275, 1891 Wisc. LEXIS 203

• Court: Wisconsin Supreme Court
• Decided: October 20, 1891
• Status: Published

Opinion

Winslow, J.

This is an appeal from a judgment by default, entered up'on a demand not due at the time of the commencement of the action. At the time of the commencement of the action a writ of attachment was issued based upon an affidavit of plaintiff’s attorney, accompanied by the proper undertaking. If the affidavit was sufficient, the judgment was properly entered, under ch. 233, Laws of 1880; otherwise the action cannot be maintained. The affidavit contained a positive statement of indebtedness upon express contract in a certain sum, to become due at certain times in the future, and then stated that said allegation “ is made upon information received from letters written to this deponent by said plaintiff, and from a sworn statement of account which is now in the possession of this deponent, and deponent verily believes said information to be true.”

The mere statement of the case shows that the affidavit was insufficient, under the rules laid down in Streissguth v. Beigelman, 75 Wis. 212, and consequently that the action cannot be maintained.

By the Court.— Judgment reversed, and action remanded with directions to dismiss the complaint.