Armstrong v. Blodgett , 33 Wis. 284 ( 1873 )

LYON, J.

The principal question to be determined relates to the sufficiency of the answer. The statute by virtue of which it was interposed, is as follows:

“ § 27. In all writs of attachment issued under the provisions of this chapter, it shall be competent for the defendant; by answer, verified by his affidavit, to deny the existence, at the time of the making of the affidavit required to be annexed to the attachment, of the material facts stated therein, whether such facts be stated upon the knowledge or belief of the deponent, or otherwise.” Tay. Stats., 1475.

It seems very clear to our minds that this answer is a compliance with the statute. It denies the existence of the facts alleged by the plaintiff in the affidavit annexed to the attachment. True, each fact therein stated is not specifically and separately denied, neither does the statute require a denial in that form. A general denial in the usual form is sufficient. Further, it is quite immaterial that the most of the facts stated in the plaintiff’s affidavit, are stated on belief. Such affidavit contains, nevertheless, a statement of facts, and the general denial in the answer is not merely a denial of the plaintiff’s belief, but a denial of the existence of the facts. Hence, the answer put in issue the material allegations of fact in the plaintiff’s affidavit, and the statute cast upon the plaintiff the burden of proving the truth of such allegations. Tay. Stats., 1475, § 28. This he failed entirely to do.

But it is claimed that the order appealed from is irregular, because there were no findings of fact filed as required by law. Were a finding of fact necessary in this case, the order itself contains such finding. But it is not necessary, because there has been no trial of the issue. The order is in the nature of a nonsuit. Tay. Stats., 1498, § 22.

By the Court. — The order of the circuit court is affirmed.