L. A. Shakman & Co. vs. Koch.

aside the writ of attachment and order of sale. Such affidavit was to the effect that very little of the property consisted of perishable goods; that the value of the entire stock was $14,000; that it might readily have been insured for a sufficient amount to cover plaintiff's claim and all other attachments thereon; that no notice of the application for a sale was served on him, and that no copy of the order was served on him. Based on such affidavit and the other papers in the case, defendant moved the court, on the 22d day of June, 1895, to set aside the service of the writ, because the officer had no authority to execute the same, and because the plaintiff did not give the undertaking required by law, and because he did not serve upon defendant in time or at any time the inventory required by law; and also moved the court at the same time to set aside the order of salefirst, because made without authority; second, because improvidently made; third, because there was no showing sufficient to warrant the order, and the making of the same under the circumstances was an abuse of judicial discretion. The motions were denied, and from the order denying the same this appeal was taken.

This case and the one following were argued together. Edward S. Bragg, of counsel, for the appellant, contended, inter alia, that the undertaking is not in compliance with the statute. Sec. 2732, R. S. It is not an undertaking on the part of the plaintiff; and it is an undertaking of principals only, without any sureties. Wiley v. C. Aultman & Co. 53 Wis. 562; Miller v. C., M. & St. P. R. Co. 58 id. 312; Manley v. Headley, 10 Kan. 88-94; Detroit Safe Co. v. Kelly, 78 Wis. 134; Waples, Attachm. & Garn. §§ 182-186; Wallace Elliott & Co. v. Plukart, 6 Pa. Co. Ct. Rep. 151; Myers v. Lewis, 1 McMullen, 54; Nat. Exch. Bank v. Stelling, 31 S. C. 360; Booker v. Smith, 38 id. 228; Jones v. Anderson, 7 Leigh, 308; Wantz v. Hendley, 2 Hen. & M. 308; Grove v. Harvey,

L. A. Shakman & Co. vs. Koch.

12 Rob. (La.), 221; Ford v. Hurd, 4 Smedes & M. 683; Work v. Titus, 12 Fla. 625.

For the respondents there was a brief signed by F. M. Lawrence and J. E. Malone, attorneys for L. A. Shakman & Co., J. E. Malone, attorney for King and others, and George A. Hawley, of counsel; and the cause was argued orally by Mr. Malone. They argued, among other things, that an undertaking signed by the sureties alone, without the signature of the plaintiff, satisfies the requirements of sec. 2732, R. S. 1 Ency. of Pl. & Pr. 973, note; Sacramento v. Dunlap, 14 Cal. 423; Curtis v. Richards, 9 id. 38; Tissot v. Darling, id. 278; Drake, Attachm. (7th ed.), § 131; 1 Abbott, New Pr. & Forms, 62; Howard v. Manderfield, 31 Minn. 337; Black Hills Mercantile Co. v. Gardiner, 5 S. Dak. 246; Taylor v. Ricards, 9 Ark. 378; Leffingwell v. Chave, 19 How. Pr. 57; Wait, N. Y. Ann. Code, § 230; 2 Wait, Pr. 151; Stevens v. Richardson, 9 Fed. Rep. 191. The sureties are bound upon the undertaking given and estopped from claiming that the same is insufficient, so that the requirements of the statute are fully complied with, namely, security to the defendant upon the levy of the attachment. The principal is bound without any written undertaking or bond. 2 Wait, Pr. 153; Billingsley v. Harris, 79 Wis. 103; Zechman v. Haak, 85 id. 656; Love v. Rockwell, 1 Wis. 382; Baltimore, O. & C. R. Co. v. Taylor, 81 Ind. 24; Waples, Attachm. & Garn. § 123.

MARSHALL, J. Respondent moved to dismiss the appeal upon the ground that an order refusing to set aside proceedings under a writ of attachment is not appealable. The motion to dismiss must be denied. The order is appealable under subd. 3, sec. 3069, R. S., as amended by ch. 212, Laws of 1895, which provides that an order may be carried by appeal to the supreme court which grants, refuses, continues,

L. A. Shakman & Co. vs. Koch.

or modifies a provisional remedy. The attachment proceedings within the meaning of the statute constitute a provisional remedy (Tiffany & S. Prac. 314; 2 Abb. Law Dict. 344), and the order refusing to set aside the proceedings under it continued such remedy. Therefore such order is appealable.

Sec. 2732, R. S., provides that before a writ of attachment shall be executed, a written undertaking on the part of the plaintiff, with sufficient surety, shall be delivered to the officer to the effect that if the defendant recovers judgment the plaintiff shall pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the writ of attachment, not exceeding the sum specified therein, which sum shall not be less than $250. It is claimed on the part of appellant that this section is not satisfied unless the undertaking be executed by the plaintiff, or some one in his behalf, and for that reason the proceedings under the writ in this case should have been set aside. The argument to sustain this contention is based largely on the construction given by this court to sec. 2731, R. S., in Wiley v. C. Aultman & Co. 53 Wis. 560. Such section requires that the affidavit for the writ shall be made by the plaintiff or by some one in his behalf, and the court held that it requires the affidavit, if not made by the plaintiff, to show that it was made by some one on behalf of the plaintiff, duly authorized. It must be observed that the statute in relation to the affidavit provides that plaintiff, or some one in his behalf, shall make it, while that relating to the undertaking provides that a written undertaking on behalf of the plaintiff shall be delivered, etc. Obviously one cannot make an affidavit without being a party to it, while an undertaking on behalf of a person may be given or delivered without his being a party to it at all. If the plaintiff delivers an undertaking with surety in the proceeding, as and for the undertaking which the statute requires, that is all that is necessary,

L. A. Shakman & Co. vs. Koch.

even by a strict construction of the statute. Such must unquestionably be so, unless the words "on behalf of" mean "execute," and we see no reason for holding that they do. If the legislative intent was to require the undertaking to be executed by the plaintiff or by some one in his behalf, it would have so provided as in sec. 1694, which requires the assignee in voluntary assignments for the benefit of creditors to deliver a bond duly executed with sureties. T. T. Haydock Carriage Co. v. Pier, 74 Wis. 582; John V. Farwell Co. v. Arthur, ante, p. 56.

The language, “give a bond or undertaking with sureties,” is used many times in the statutes of this state, and has never been understood to require the person giving such bond to become a party thereto by executing it. In the action of replevin (sec. 2720) it is provided that, in order to authorize the taking of the property from the defendant, plaintiff must give an undertaking, with sureties, etc. Sec. 2722 provides for the return of the property upon the defendant giving an undertaking, with sureties, etc. In the proceedings on arrest and bail (sec. 2692) it is provided that plaintiff shall give an undertaking, with or without sureties, etc. The same language is used in sec. 2778, requiring an undertaking with surety upon granting an injunction. Also in sec. 3052, relating to the undertaking on appeal to the supreme court, the same language is used; and a great many other instances might be referred to, in none of which has it ever been held that the principal must sign the undertaking.

In Bellinger v. Gardiner, 12 How. Pr. 381, on the same subject, Mr. Justice DAVIES said, in effect: "It is manifest that 'on the part of plaintiff' or 'on behalf of plaintiff,' which are equivalent expressions, denote substitution; that the thing is to be done by others in behalf of, or on the part of, and not by the person himself. If the framers of the Code had intended that the undertaking should be executed by

L. A. Shakman & Co. vs. Koch.

plaintiff, they would have said so, and not used the expression 'on the part of,' or 'on behalf of." Our attention is called by appellant's counsel to Richardson v. Craig, 1 Duer, 666,- an earlier case, where a different construction was given to the statute under consideration in Bellinger v. Gardiner; but, suffice it to say that case is referred to in numerous decisions in New York, is disapproved in substantially all, and has never been there recognized as authority. In Askins v. Hearns, 3 Abb. Pr. 184, EмOTT, J., says: "I cannot concur with the construction given to sec. 182 of the Code in Richardson v. Craig. I am unable, even by the strictest construction of the statute, to see how it can be said that an undertaking must be made by, in order to be on the part of, the plaintiff. I think the language of the section itself indicates that where sureties are required the statute is complied with by an undertaking by them without the signature of the plaintiff." DAVIES, J., in Bellinger v. Gardiner, in deciding the same question, said: "I have reflected upon Richardson v. Craig, and cannot reconcile it with the language of the Code. My high respect for the eminent jurist who gave the opinion, and for those who concurred in it, has led me to doubt the correctness of my own conclusions; but they are so clear to my mind, and sustained by the authority of this court, that I cannot hesitate to follow the latter." See, also, Leffingwell v. Chave, 19 How. Pr.. 57, to the same effect, which is cited in 2 Wait, Prac. 151, as a correct exposition of the law and in accordance with the established practice. Similar language has received a similar construction in other jurisdictions. Black Hills Mercantile Co. v. Gardiner, 5 S. Dak. 246; Howard v. Manderfield, 31 Minn. 341; Pierse v. Miles, 5 Mont. 551.

This court passed directly on the question in Conan v. Follis, 61 Wis. 224, in construing the language of sec. 3092, R. S. That requires plaintiff to give an undertaking with sureties as a condition precedent to a second trial in an ac