This action was commenced by attachment before a justice of the peace, and the affidavit for the writ failed to state that the indebtedness of the defendant therein mentioned was due upon contract, express or implied. The writ was duly served, and on the return day thereof the defendant appeared, and answered a general denial. He also moved to dismiss the case for a defect in such affidavit, in that, as set forth in the motion, it “ does not designate particularly the logs run, and does not state mark ox quality.” The justice denied the motion, the parties went to trial upon the merits, and the plaintiff recovered judgment. The defendant appealed to the circuit court for Waupaca county, and noticed the action for trial at the June term thereof, 1870, at which term the court dismissed the action, on the ground that such affidavit was defective and did not confer jurisdiction upon the court, and gave judgment against the plaintiff for costs. From that judgment the plaintiff has appealed to this court.
The writ of attachment was void by reason of the want of an allegation in the affidavit upon which it was issued, that the indebtedness was “ due upon contract, express or implied.” The statute imperatively requires that the affidavit shall state that fact, and unless it is so stated, no valid writ can issue. Had the defendant appeared specially for that purpose alone, and moved the court to dismiss the action for want of jurisdiction, and made no further appearance in or defense to the action, the judgment would have been absolutely void, and should have been reversed, had it been removed to the circuit court by a common law certiorari. But instead of keeping out of court for any other purpose than to make the motion, as he should have done if he desired to get any benefit by reason of the defect in the affidavit, he appeared generally in the action, answered to the merits, went to trial, appealed from the judgment against him, and noticed the action for trial in the circuit court.
*501It is perfectly well settled in this and other states, that these acts, and probably any one of them, operated as a waiver of the defect in the affidavit, and gave the court jurisdiction of his person. Low v. Stringham, 14 Wis. 222; Woodruff v. Sanders, 18 Wis. 161.
It is said in the brief of counsel for the respondent, that the court did not have jurisdiction of the subject-matter of the action, and therefore such. appearance and pleading to the merits, etc., did not cure the defect. But the first proposition is clearly untenable. The subject-matter of the action was a money demand for eighty dollars, and that was certainly within the jurisdiction of the justice.
The justice then had jurisdiction of the subject-matter of the action, and of the person of the defendant; and the judgment rendered by him was a valid judgment. The appeal gave the circuit court jurisdiction, and it was error to dismiss the action for want of jurisdiction.
Had the action been properly dismissed, still it was error to render a judgment for costs against the plaintiff. Felt v. Felt, 19 Wis. 193.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.