Chapter 811

CHAPTER 811

ATTACHMENT

811.001   Definitions.

811.01   Attachment; municipal corporation.

811.02   Writ; form and contents.

811.03   Basis for attachment.

811.04   Amendment to affidavit.

811.06   Bond; justification.

811.07   Additional security.

811.08   Officer’s return.

811.09   Alias writs.

811.10   Directions to sheriff; several writs.

811.11   Attachment of real estate.

811.12   What may be attached; how attached.

811.13   Indemnity to sheriff.

811.14   Sale of perishable property attached or garnisheed.

811.15   Care of property; collection of debts.

811.16   Bond for release of property; estoppel.

811.17   Exception to defendant’s sureties; release of property; costs.

811.18   Vacation or modification of writ.

811.19   Hearing on motion to vacate or modify.

811.21   Damages, defendant when to recover.

811.22   Return of property; damages on dismissal; entry in register’s office.

811.23   Judgment for plaintiff, how satisfied.

811.24   Action by sheriff, who to prosecute.

811.25   Execution after defendant’s death.

811.26   Stranger may intervene.

811.001 811.001 Definitions. In this chapter:

811.001(1) (1) “Defendant” includes the spouse or former spouse of the defendant if the action against the defendant is in connection with an obligation described under s. 766.55 (2).

811.001(2) (2) “Property of his or her debtor” and “property of the defendant” include the marital property interest of the spouse or former spouse of the debtor or defendant if the action against the debtor or defendant is in connection with an obligation described under s. 766.55 (2).

811.001 History History: 1985 a. 37; 1993 a. 486.

811.01 811.01 Attachment; municipal corporation. Any creditor may attach the property of his or her debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter. No writ of attachment shall be issued against a municipal corporation, as defined in s. 67.01 or to recover the price or value of intoxicating liquors sold at retail.

811.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 758 (1975); Stats. 1975 s. 811.01; 1993 a. 486.

811.01 Annotation The doctrine of marshaling assets is discussed. Moser Paper Co. v. North Shore Pub. Co. 83 Wis. 2d 852, 266 N.W.2d 411 (1978).

811.02 811.02 Writ; form and contents. The writ of attachment shall be issued by a judge or other judicial officer on the request of the plaintiff at any time before final judgment and after a summons and a complaint are filed. It shall be directed to the sheriff of some county in which the property of the defendant is supposed to be, and shall require the sheriff to attach all the property of the defendant within the county or so much thereof as may be sufficient to satisfy the plaintiff’s demand, together with costs and expenses. It shall be in the name of the court and be sealed with its seal. If the amount of money sought was excluded from the demand for judgment, as required under s. 802.02 (1m), the court shall require the plaintiff to specify the amount of money claimed and provide that information to the court and to the other parties prior to the court issuing the writ.

811.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 758 (1975); Stats. 1975 s. 811.02; 1977 c. 412; 1987 a. 256.

811.02 Note Judicial Council Committee Note, 1974: The amendment precludes attachment prior to commencement of action by filing of the summons and complaint. [Re Order effective Jan. 1, 1976]

811.03 811.03 Basis for attachment.

811.03(1) (1) On contract or judgment. Before any writ of attachment shall be executed the plaintiff or someone in the plaintiff’s behalf shall make and annex thereto an affidavit setting forth specific factual allegations to show that the defendant is indebted, or that property of the defendant is available, to the plaintiff in a sum exceeding $50 specifying the amount above all setoffs, and that the same is due upon contract or upon a judgment and that the affiant knows or has good reason to believe either:

811.03(1)(a) (a) That the defendant is absent from this state, or is concealed therein so that summons cannot be served on the defendant; or

811.03(1)(b) (b) That the defendant has disposed of or concealed or is about to dispose of or conceal the defendant’s property or some part thereof with intent to defraud the defendant’s creditors; or

811.03(1)(c) (c) That the defendant has removed or is about to remove property out of this state with intent to defraud the defendant’s creditors; or

811.03(1)(d) (d) That the defendant fraudulently incurred the obligation respecting which the action is brought; or

811.03(1)(e) (e) That the defendant is not a resident of this state; or

811.03(1)(f) (f) That the defendant is a foreign corporation; or if domestic that no officer or agent thereof on whom to serve the summons exists or resides in this state or can be found; or

811.03(1)(g) (g) That the action is against a defendant as principal on an official bond to recover money due the state or to some county or other municipality therein, or that the action is against the defendant as principal upon a bond or other instrument given as evidence of debt for or to secure the payment of money embezzled or misappropriated by such defendant as an officer of the state or of a county or municipality therein.

811.03(2) (2) Tort action. Except as provided in ss. 806.30 to 806.44, in tort actions the affidavit shall state that a cause of action in tort exists in favor of the plaintiff and against the defendant, that the damages sustained exceed $50, specifying the amount claimed and either:

811.03(2)(a) (a) That the defendant is not a resident of this state; or that the defendant’s residence is unknown and cannot with due diligence be ascertained; or

811.03(2)(b) (b) That the defendant is a foreign corporation.

811.03(3) (3) On demands not yet due. An action may be maintained and a writ of attachment issued on a demand not yet due in any case mentioned in this section, except the cases mentioned in sub. (1) (e), (f) and (g) and the same proceedings in the action shall be had and the same affidavit shall be required as in actions upon matured demands except that the affidavit shall state that the debt is to become due; but the bond specified in s. 811.06 shall be conditioned in 3 times the amount claimed in the affidavit. In case an attachment is issued before the maturity of the debt and a traverse to such attachment is sustained the court shall render a judgment for damages and costs against the plaintiff.

811.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 758, 778 (1975); Stats. 1975 s. 811.03; 1977 c. 412; 1985 a. 37; 1987 a. 256; 1991 a. 236; 1993 a. 486.

811.03 Annotation A second writ can be issued before the first is dissolved if based on a different ground. The validity of the basis for the writ must be determined as of the date it is issued. Plan Credit Corp. v. Swinging Singles, Inc. 54 Wis. 2d 146, 194 N.W.2d 822 (1972).

811.04 811.04 Amendment to affidavit. The affidavit required by s. 811.03 may be amended at any time before the trial by the substitution of a new affidavit containing allegations of facts existing at the time of making the former affidavit.

811.04 History History: Sup. Ct. Order, 67 Wis. 2d 585, 758, 778 (1975); Stats. 1975 s. 811.04.

811.06 811.06 Bond; justification. Before the writ of attachment is executed, a bond on the part of the plaintiff in a sum set by the judge or the judicial officer issuing the writ of attachment in an amount sufficient to provide adequate security to the defendant for any damages the defendant may sustain by reason of the attachment, shall be filed with the court to the effect that if the defendant recovers judgment the plaintiff shall pay all damages which the defendant may sustain by reason of the attachment. The affidavit of the surety annexed to the bond shall state that the surety is a resident and householder or freeholder within the state and worth double the sum specified in the bond in property therein above his or her debts and exclusive of property exempt from execution. No bond is necessary when this state or any county, town or municipality therein is plaintiff.

811.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 758 (1975); Stats. 1975 s. 811.06; 1977 c. 412.

811.06 Annotation The bond may be executed by the plaintiff’s attorney on the plaintiff’s behalf. Plan Credit Corp. v. Swinging Singles, Inc. 54 Wis. 2d 146, 194 N.W.2d 822 (1972).

811.07 811.07 Additional security. In case the defendant is not satisfied with the amount specified in the bond or with the surety, the defendant may, upon 5 days’ notice to the plaintiff, apply to a judge for additional security and the judge may require the plaintiff to give and file another bond, to be approved by the judge, in such sum as the judge shall consider proper, not exceeding the appraised value of the property attached. The surety shall justify as provided in s. 811.06; but if there be more than one surety, the sureties may be accepted if they are jointly responsible for the required sum.