UNITED STATES GENERAL, INC. v. ARNDT, (E.D.Wis. 1976)

REYNOLDS, Chief District Judge.

This action, brought pursuant to 42 U.S.C. § 1983, 1985 and 1988, involves a fourteenth amendment challenge to the validity of the Wisconsin Attachment Statute, Wis.Stats., Chap. 266 (1973). The plaintiff, United States General, Inc. ("U.S. General") seeks damages as well as declaratory and injunctive relief. Jurisdiction is conferred on this court under the provisions of 28 U.S.C. § 1343.

This case is presently before the court on plaintiff's motion for declaratory and injunctive relief, and defendant Strandberg's motion to dismiss for lack of subject matter jurisdiction and/or failure of the complaint to state a claim on which relief can be granted. For the reasons given below plaintiff's motion must be granted and enforcement of the statute enjoined, while defendant's motion must be denied.

PARTIES AND FACTUAL BACKGROUND

The plaintiff is a Wisconsin corporation engaged in the business of real estate construction, with its principal place of business in Brookfield, Wisconsin. The defendant Ronald Arndt is a carpenter from Antigo, Wisconsin, who commenced one of the attachment proceedings against the plaintiff which gives rise to this action. The defendant Winona Arndt, presumably Ronald's wife, executed a bond with respect to this attachment proceeding. Defendants Oscar Thomae and Gerald Thomae are father and son and are engaged in the electrical business in Antigo. They also commenced an attachment action against the plaintiff, and their wives, defendants Orletta Thomae and Renae Thomae, each executed a bond in connection with this attachment action. The defendant Julius Wedemayer is a dry-wall applicator in Antigo, who commenced another attachment action against the plaintiff in which his wife, defendant Shirley Wedemayer, executed a supporting bond. The defendant Richard T. Winter is an attorney in Antigo and represented the above-mentioned defendants in their respective attachment actions. All these actions were commenced in the County Court of Langlade County, Wisconsin. The defendant Victoria Adamski is the clerk of court for Langlade County, and the defendant, Honorable Ralph J. Strandberg, is a county judge in Langlade County. Finally, the defendant, Roland Combs is the sheriff of Langlade County.

From a stipulation signed and filed by the parties, the following facts appear. At all times relevant to this suit, U.S. General owned three parcels of real estate which were located in Antigo, Wisconsin. In March of 1975, defendants Ronald Arndt, Oscar Thomae and Gerald Thomae, and Julius Wedemayer each commenced an action against U.S. General in the County Court for Langlade County in which each claimed that U.S. General owed money for work performed pursuant to a construction agreement on a housing project for the city of Antigo. The provisions of Sec. 266.02, Wis.Stats., entitle any plaintiff to have a writ of attachment issue upon his request at any time after the summons and complaint are issued and shown to the clerk of court. Before the writ of attachment can be executed, however, the plaintiff or his representative must make and attach to the writ an affidavit showing the basis for the attachment under the provisions of Sec. 266.03, Wis.Stats., and a bond must be delivered in conformity with the provisions of Sec. 266.06, Wis.Stats. Each of the complainants in the state actions executed an affidavit stating that the underlying action was one for damages in excess of $500 which grew out of a contractual agreement, and that U.S. General owned real estate with the jurisdiction of the County Court "which it may attempt to dispose of upon service of the Summons and Complaint in this action with intent to defraud the plaintiff." (Statement of Uncontested Facts, Exhibits "A", "B" and "C".) Each complainant, as principal, and his wife as surety, also executed a bond in the amount of $250 which otherwise met the requirements of Sec. 266.06, Wis.Stats. The defendant Adamski thereupon determined in the case of each complainant that a summons had been issued and that a satisfactory affidavit and bond were attached. This determination was made ex parte and without notice to U.S. General. The defendant Adamski then issued three writs of attachment against U.S. General in the name of the defendant, Honorable Ralph J. Strandberg, presiding judge of the County Court of Langlade County, to whom the contract actions and attachment proceedings had been assigned. Defendant Combs, sheriff of Langlade County, executed the writs of attachment against the property of U.S. General under the provisions of Sec. 266.11, Wis.Stats., by filing a certificate of attachment in the office of the Register of Deeds of Langlade County. U.S. General first received notice of the attachment of its property when copies of the summons, complaint, writs of attachment, attachment affidavits, and bonds for attachment were served upon it approximately one week after the writs were executed. It is stipulated that each piece of property attached had a market value in excess of $1000.

Shortly after being served, attorneys for U.S. General commenced the present action in federal court and moved the Langlade County Court for an order staying all further proceedings in that court on the complaint and attachment pending a decision in this case. Judge Strandberg subsequently extended the time for U.S. General to answer or otherwise plead to the state court complaint, file a traverse to the attachment pursuant to Sec. 266.19, Wis.Stats., or apply for additional security pursuant to Sec. 266.07, Wis.Stats. No permanent stay was ordered. U.S. General thereupon filed an answer and counterclaim and moved to vacate and quash the attachment. That motion is still pending before the county court. This three-judge district court was convened pursuant to 28 U.S.C. § 2281, 2284, and the briefs and arguments of counsel on the motions presently before the court followed.

STATUTORY SCHEME

In general, Chapter 266 of the Wisconsin Statutes provides a means whereby a plaintiff may attach the assets of a defendant at the inception of an action. Section 266.01 provides that "[a]ny creditor may attach the property of his debtor. * * *" The writ shall be issued and signed by the clerk of the state court in the name of the court and sealed with its seal at any time before final judgment after a summons has been issued and is shown to the clerk. Section 266.02. In the present case, the plaintiff or his attorney must make an affidavit to the effect that the defendant is indebted to the plaintiff in a sum greater than fifty dollars upon a contract, and that the affiant knows or has good reason to believe that "the defendant has disposed of or concealed or is about to dispose of or conceal his property or some part thereof with intent to defraud his creditors." Section 266.03(1)(b). Section 266.04 provides that this affidavit may be amended at any time before trial by a new affidavit. The plaintiff must post a bond of at least $250, executed by sufficient surety, to the effect that if the defendant shall recover 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 attachment. Section 266.06. If the defendant denies that the bond posted by the plaintiff is insufficient or the surety unsatisfactory, he may apply to a judge for additional security upon at least five days' notice to the plaintiff. Section 266.07. Within ten days of the receipt of plaintiff's bond, the sheriff shall file the summons, writ, affidavit and bond with the clerk of court, Section 266.08, and in the case of real property, the sheriff files with the register of deeds a copy of the writ with a certificate stating that "by virtue of the original writ he has attached all the interest of the named defendant in such real estate." Section 266.11. By posting a bond executed by two sureties in an amount double the sum alleged to be due, or double the value of the property attached, a defendant may release his attached property before judgment. If the attached property is real estate, this bond may be "a sum fixed by the court or a judge, on notice." Section 266.16. Section 266.18 provides that a writ of attachment may be modified or vacated at any time prior to trial "upon five days' notice of motion." A defendant may also file a traverse to the attachment action in which any material fact set forth in the attachment affidavit, except the alleged liability and the amount thereof may be denied. The questions joined shall be tried by the court before trial of the underlying action, with the burden of proof placed on the plaintiff. Section 266.19. The party prevailing on the issues raised by the traverse shall receive, either through the ultimate judgment or by way of set-off, his costs arising out of the traverse. Section 266.20. If the defendant ultimately prevails in the underlying action, or if the action is discontinued, he shall be awarded his damages resulting from the detention or sale of the property attached. Section 266.21.

NONINTERVENTION

We are initially faced with the question of whether applicable considerations of comity and federalism require this Court to stay its hand in the present case. Although U.S. General's motion to vacate and quash the attachment is apparently still pending in the Langlade County Court, this Court finds it should not withhold its judgment on the substantive issues joined by the parties.

Analysis of the problem must begin with the so-called anti-injunction statute, 28 U.S.C. § 2283, which provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." It is not disputed that to grant the relief plaintiff seeks here would, in effect, stay the state court proceedings described above. In Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), however, the Supreme Court made clear that actions brought pursuant to 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343, are within the exception provision of § 2283 that prohibits enjoining state court proceedings "except as expressly authorized by Act of Congress." Id. at 242-43, 92 S.Ct. 2151.

Yet, the Court's holding in Mitchum v. Foster, supra does not end the inquiry here, for this Court recognizes that it is equally well settled that there is a "national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971). Such special circumstances undoubtedly exist where the state law is "`flagrantly and patently violative of express constitutional prohibitions,'" id. at 53, 91 S.Ct. at 755, or where irreparable injury is "both great and immediate," id. at 46, 91 S.Ct. 746. Moreover, if there is "the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved," Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973), then a federal court must allow the state forum to complete its work. These principles are arguably applicable to all state criminal and civil proceedings, at least where the civil proceedings are "more akin to a criminal prosecution than are most civil cases." Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975).

In Huffman, the Court had before it an Ohio public nuisance statute which defined a place exhibiting obscene films to be a nuisance, and provided for up to one year's closure for any place determined to be a nuisance, and the sale of personal property used in conducting the nuisance. After a successful state court nuisance proceeding was brought by state officials against a theater operator, the operator's successor commenced an action in federal district court under 42 U.S.C. § 1983, alleging that the use of the nuisance statute against it constituted deprivation of constitutional rights under color of state law. The Supreme Court held that under the circumstances the principles of abstention outlined in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), in the context of ongoing state criminal proceedings were equally applicable to the civil action there under consideration. The case was remanded to the three-judge district court which had not ruled on the Younger issue.

The Court's opinion in Huffman turned, in large part, on the character of the state statute there under consideration in determining what treatment federalism and comity demanded of the federal courts. The Court found the nuisance action being scrutinized "a state proceeding which in important respects is more akin to a criminal prosecution than are most civil cases. The State is a party to the [state court] proceeding, and the proceeding is both in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials. Thus, an offense to the State's interest in the nuisance litigation is likely to be every bit as great as it would be were this a criminal proceeding. Cf. Younger v. Harris, supra, 401 U.S., at 55 n. 2 [ 91 S.Ct. 746 at 757] (Stewart, J., concurring). Similarly, while in this case the District Court's injunction has not directly disrupted Ohio's criminal justice system, it has disrupted that State's efforts to protect the very interests which underlie its criminal laws and to obtain compliance with precisely the standards which are embodied in its criminal laws." 420 U.S. at 604-605, 95 S.Ct. at 1208. Further, the Court expressly left open the question of the applicability of Younger principles in the context of civil litigation involving private parties, and recognized that "[s]trictly speaking, this element of Younger is not available to mandate federal restraint in civil cases." Id. at 604, 95 S.Ct. at 1208 (emphasis supplied).

We hold that under the circumstances presented here, this Court need not stay its hand in deference to the principles set forth in Younger and Huffman. The Wisconsin attachment statute presently before us is designed to aid private creditors and potential creditors in the ultimate collection of their alleged debts. No section of the Wisconsin Criminal Code is directly implicated or paralleled by the attachment device. Thus, this Wisconsin statute is undoubtedly more purely civil and private than the Ohio nuisance proceeding which the Court in Huffman effectively characterized as quasi-criminal. Our intervention here does not contain the element of federal interference with the State's legitimate interest in regulating the primary conduct of its citizens which concerned the Huffman court.

In this same vein we note that while certain county officials are named here as defendants, they are named for ministerial acts performed under the statutory framework of Chapter 266. The underlying controversy in this action is essentially between private parties. Therefore, the situation here differs importantly from that in Huffman where state officials were not nominal parties but were seeking to enforce by means of a civil action a state policy as embodied in the challenged Ohio statute.

Other distinguishing features of this case also militate strongly in favor of our decision here. Although the pleadings and motion described above have nominally been filed in the county court, the court itself, a party to this action, has taken no action with regard to this matter other than causing its seal to appear on the writs of attachment. These matters have been before the county court for approximately one year at the time of this writing without any indication that a response to U.S. General's motion to required or that it will be brought on for hearing and decision. Thus, this Court has no alternative but to conclude that the parties have not, as a practical matter, been afforded the opportunity to have the federal questions presented decided by the Langlade County Court in a timely fashion. To this point the proceedings in state court have taken on a quasi-administrative quality, involving merely the ministerial actions of the clerk of court and sheriff. Cf. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1974). Moreover, there is no possibility that disposing of plaintiff's claim on the merits at this juncture will substantially duplicate proceedings already had in state court. See Huffman v. Pursue, Ltd., supra, 420 U.S. at 608, 95 S.Ct. 1200. The prejudgment attachment of plaintiff's real estate has deprived it of the ability to transfer the property (or the proceeds held in lieu of the real estate) during the pendency of the underlying lawsuit. Such an immediate and continuing curtailment of a constitutionally cognizable property interest raises serious federal constitutional questions and deserves prompt consideration on the merits. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Dorsey v. Community Stores Corp., 346 F. Supp. 103 (E.D.Wis. 1972). Cf. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). As will be discussed below the Court finds Chapter 266 constitutionally deficient in many important respects. This conclusion, when added to the other features of the case outlined above, thrust the instant matter outside the limits of the abstention doctrine. See Younger v. Harris, supra, 401 U.S. at 46, 53, 91 S.Ct. 746; Gibson v. Berryhill, supra, 411 U.S. at 577, 93 S.Ct. 1689; Huffman v. Pursue, Ltd., supra, 420 U.S. at 601-602, 95 S.Ct. 1200.

The recent decisions of this circuit in Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir. 1975), and of the Supreme Court in Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976), are not contrary to this conclusion. Ahrensfeld involved a federal constitutional challenge to Illinois state court eminent domain proceedings, the court of appeals holding that abstention was appropriate where the federal claims could be properly adjudicated in the pending state proceedings and where the state statute under attack was susceptible of state court construction which would avoid or modify the constitutional questions. Eminent domain, a power intimately involved with state prerogative, Louisiana Power Light Co. v. City of Thibodaux, 360 U.S. 25, 28, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), is certainly an area of high governmental and proprietary interest for the state. As pointed out above, the same cannot be said of the more purely private attachment statute at bar. Moreover, unlike attachment, the inherently local nature of eminent domain proceedings makes it a particularly unwise area for federal court interference. Ahrensfeld v. Stephens, supra, at 198 (and cases cited therein). Finally, the Ahrensfeld court's reliance on the doctrine of Railroad Commission v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) is inapplicable here since we find below that Chapter 266 is clear and unambiguous.

Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976) a case similar to the instant action, involved a constitutional attack on certain provisions of New York's prejudgment attachment statute. In a per curiam opinion the Court relied solely on Railroad Commission v. Pullman Co., supra, and its progeny in holding that since the New York courts could construe the statute so as to remove any constitutional problems, the federal courts should abstain from deciding the federal constitutional questions. No mention is made by the Court of Younger, Huffman, or related cases. Since we are prepared to rule that the statute at bar will not admit of state judicial construction which would cure its constitutional defects, it is well settled that Pullman does not preclude federal court consideration of the underlying constitutional questions. Harmon v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Chicago v. Atchison, Topeka Santa Fe Ry., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958); Doud v. Hodge, 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577 (1956); and Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). We also note that Pullman -type abstention has never been applied by the Supreme Court when confronting an actual application of the challenged state statute. In Pullman itself, the issue before the Court concerned the subsequent application of the Texas Railroad Commission's order. And in Carey v. Sugar, supra, the controversy was confined to the scope of a post-seizure hearing which had not yet been held.

The instant case presents substantial questions pertaining to an alleged taking of plaintiff's property that has already been accomplished. We need not abstain from addressing them.

THE CONSTITUTIONALITY OF CHAPTER 266

In recent years the arsenal of prejudgment remedies traditionally afforded to plaintiffs by the states have come under close scrutiny by the courts. Thus, in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Supreme Court invalidated a Wisconsin prejudgment wage garnishment statute, Florida and Pennsylvania prejudgment replevin statutes, and a Georgia prejudgment garnishment statute respectively. And in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Court upheld a carefully drawn Louisiana prejudgment sequestration statute. The principles articulated in these decisions dictate the substantive result in the case at bar.

At the outset we note that "[a]ny significant taking of property by the State is within the purview of the Due Process Clause," Fuentes v. Shevin, supra, 407 U.S. at 86, 92 S.Ct. at 1997, regardless of whether the property involved belongs to a consumer or a corporation functioning in a commercial setting. North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. at 608, 95 S.Ct. 719. This undoubtedly includes real estate or other attachable property and the deprivation of the right to dispose of it or its proceeds during the pendency of the underlying lawsuit, all by writ of attachment issued in accordance with Chapter 266, Wis.Stats.

The Wisconsin Attachment Statute permits official seizures of property without prior notice and opportunity for hearing. All that need be done to obtain the writ is to accompany a request with the summons and complaint issued in the underlying action, an affidavit stating a basis for the writ, and the required bond. See §§ 266.02, 266.03 and 266.06.

In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606, 95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1975) the Court characterized its holding in Fuentes v. Shevin, as follows:

"* * * Because the official seizures had been carried out without notice and without opportunity for a hearing or other safeguard against mistaken repossession they were held to be in violation of the Fourteenth Amendment." (emphasis added)

In the statute now before us there is no provision for notice and hearing prior to the attachment writ being issued and executed. Hence, under Fuentes, as interpreted in North Georgia Finishing, our inquiry becomes whether adequate alternative safeguards are present to prevent mistaken seizures of property. An examination of the statute reveals no such safeguards, but rather, four instances of significant constitutional deficiency in this regard.

First, § 266.03 permits issuance of an attachment writ upon a conclusory supporting affidavit. The subsection relevant to this action permits the affidavit to be made by the plaintiff or someone acting on his behalf, and requires merely an allegation that the defendant is indebted to the plaintiff in a sum greater than fifty dollars due upon a contract or judgment, and that the affiant knows, or has good reason to believe, one of several conclusions. There is no requirement that the facts supporting the conclusion be disclosed with specificity, or that such facts be established to the satisfaction of a neutral judicial officer. See North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. at 607, 95 S.Ct. 719; cf. Mitchell v. W.T. Grant Co., supra, 416 U.S. at 605-606, 94 S.Ct. 1895. The potential for abuse in this regard is readily apparent. Far from insuring against mistaken seizures by attachment, § 266.03 actually fosters such deprivations of property.

Second, the security required to be provided by the plaintiff before a writ shall issue is wholly inadequate. Section 266.06 unequivocally requires a bond of $250 as a minimum at the outset of any attachment proceeding. Neither the clerk of court nor the sheriff is vested with any discretion to ascertain whether such a bond affords the defendant adequate security before the writ is issued and executed. Indeed, § 266.02 of the statute dictates that the writ "shall be issued on the request of the plaintiff," and "shall require [the sheriff] to attach all the property of the defendant within his county or so much thereof as may be sufficient to satisfy the plaintiff's demand * * *." Thus, there is no assurance at the outset that a defendant whose property is being attached ex parte will be afforded reasonable security given the value of the attached property. In the instant case attachment writs were issued for parcels of land with a stipulated value in excess of $1000 each, where the bond posted by the attaching party was the minimum $250. There is nothing in the statute to prevent this disparity from being even greater. It is true that if a defendant is dissatisfied with the amount of plaintiff's bond or with the surety, he may petition the court as provided in § 266.07, but this may take place only after the attachment writ has been issued and executed and upon no less than five days' notice to the plaintiff. No provision establishes that before a writ is issued and a defendant deprived of his property, he will be left with a reasonably adequate remedy in the event of a wrongful attachment. The result again is that the possibility of a mistaken seizure is enhanced. Cf. Mitchell v. W.T. Grant Co., supra.

Third, the statute fails to provide a defendant sufficient opportunity to obtain immediate relief from a wrongful issuance or execution of the writ. As outlined above, § 266.18 allows a defendant to move to vacate or modify the writ of attachment for irregularity or other sufficient cause "upon five days' notice of motion." It is undisputable that the earliest relief obtainable by a defendant challenging the sufficiency of the pleading is five days. Moreover, there is no certain time period within which the statute requires such a motion to be heard and decided. Similarly, § 266.19, which allows a defendant to traverse the attachment if the pleading is sufficient on its face, provides only that the traverse must be tried before the principal action. Thus, there is no guarantee of prompt judicial determination of a defendant's motion to vacate or modify the writ, or a traverse of the attachment. In Mitchell v. W.T. Grant Co., supra, the Louisiana sequestration statute upheld by the Court provided that the debtor could seek dissolution of the writ immediately, a provision repeatedly held by the Court as being one of the important provisions in determining the constitutionality of the statute. See 416 U.S. at 606-609-611, 618, 94 S.Ct. 1895. Such provisions are absent here. Thus, the Wisconsin statute, which should seek to minimize the risk of a wrongful seizure is deficient in an important respect.

Lastly, and perhaps most importantly, the Wisconsin statute specifically precludes judicial consideration of a plaintiff's likelihood of success on the merits of the claim underlying the attachment at a trial of issues raised by a traverse to the writ. Section 266.19 states that:

"[w]ithin 10 days after notice of the issuing of a writ of attachment against his property or within the time in which he may answer the complaint, the defendant may, by special answer, deny the existence, at the time of the making of the attachment affidavit of the material facts stated therein except the alleged liability and the amount thereof. * * *" (Emphasis added)

See also Gallun v. Weil, 116 Wis. 236, 92 N.W. 1091 (1903). Therefore this case is clearly distinguishable from Carey v. Sugar, supra, in which the Supreme Court found that the statute under scrutiny could be construed to permit an adequate inquiry into the merits of plaintiff's underlying claim, and, therefore, instructed the lower court to abstain.

Such an unequivocal elimination of consideration of the plaintiff's underlying claim on a challenge to the writ renders the process afforded therein deficient. See North Georgia Finishing, Inc. v. Di-Chem, Inc., supra; Mitchell v. W.T. Grant Co., supra; Fuentes v. Shevin, supra. Without such a preliminary inquiry the possibility of an unnecessary, mistaken attachment are greatly increased. See the discussion in Sugar v. Curtis Circulation Co., 383 F. Supp. 643, 648-650 (S.D.N.Y. 1974) (three-judge; reversed Carey v. Sugar, supra.

Therefore, since the challenged statute fails to provide a pre-attachment hearing or other sufficient safeguards to prevent a mistaken seizure of property, we find the challenged provisions unconstitutional. Fuentes v. Shevin, supra; North Georgia Finishing, Inc. v. Di-Chem, Inc., supra.

IT IS THEREFORE ORDERED that plaintiff U.S. General's motion for declaratory and injunctive relief be and hereby is granted.

IT IS FURTHER ORDERED that Chapter 266, Wis.Stats., now Chapter 811, Wis. Stats., is declared to be unconstitutional, and that the defendants herein are hereby enjoined from any further action thereunder.