¶1By force of secs. 25 and 26 of ch. 180, R. S. 1858, the proceedings in obtaining judgment, taxing costs and issuing execution wereprregular and premature. Sec. 25 provides “ that the defendant shall not be permitted to traverse the affidavit after judgment against him in the action;” clearly implying that the traverse shall not be tried after judgment in the action, but shall be tried and disposed of before judgment. This is necessary in order that sec. 26 may have any • force as to the disposition of the costs and damages in case the *210defendant is successful upon the trial of his traverse; for it provides that in such case “ the costs of such trial,” “ and the damages sustained by the defendant by reason of the taking and detention of the property attached, or of any injury to such property, . . . shall be allowed and applied as an offset to the plaintiff’s demand.” These provisions were violated in this case by taxing the costs of the attachment, with the other costs in the action, before the questions upon the traverse were tried and determined; and there can be no question but that they necessarily postpone the entry of judgment in the action until after the trial of the traverse. The statute also makes the property levied upon by the attachment, the primary fund out of which the judgment must be satisfied, if sufficient for that purpose; implying that the attachment is in force even after judgment.
¶2That which is the only question here, though perhaps not strictly involved in that case, was disposed of by this court in Main v. Bell, 33 Wis., 544, by the following language in the opinion of Mr. Justice Lyon: “The statute concerning the trial of such issue contains provisions which render it dear that the legislature intended that the same should be tried béfore the principal action. Hence it may have been, and probably was, irregular to take judgment in the principal action before such issue was disposed of.” It is only necessary to reaffirm this language, to be decisive of this case.
¶3The practice adopted by the respondent in applying, by motion, to the circuit court at the first term thereof after such irregular entry of judgment by the clerk in vacation, to vacate and set it aside, is unobjectionable. .
¶4By the Court. — The order of the circuit court is affirmed, with costs.