Glugermovich v. Zicovich

Britt, C. Action on a promissory note for the sum of four hundred and seventy-three dollars, made by defendant to plaintiff, and which fell due June 14, 1894; one of its provisions was that in case of suit a reasonable counsel fee should be allowed. On said June 14th Zicovich, the maker, was garnished in respect of his indebtedness on the note in an action brought by one Coschina [66] in a justice’s court against the plaintiff here, said Glugermovich; such attachment was in force when this action was begun—June 15,1894—and the defendant Zicovich pleaded the fact thereof in his answer. The suit of Coschina v. Glugermovich was yet pending and undetermined at the -time of trial of the present case; upon such trial plaintiff recovered judgment for said sum of four hundred and seventy-three dollars, together with a further allowance for counsel fees and costs of suit. A proper mode of procedure for the garnishee under ■such circumstances was long ago pointed out by the decisions of this court; he may by affidavit or other appropriate means bring to the attention of the court where he is sued by his own creditor the facts of the garnishment, and apply for a stay of proceedings until the action of the attaching creditor can be disposed of. (McKeon v. McDermott, 22 Cal. 667; 83 Am. Dec. 86; McFadden v. O’Donnell, 18 Cal. 160.) Doubtless, also, cases may arise where the court would find it expedient, for the purposes of justice, to allow the cause to proceed to judgment, but staying execution upon the whole or enough thereof to provide for the satisfaction of the demand for which the debtor is garnished; the end sought being to enforce payment from him once and only once, and that to the person whose claim against him turns out to be legally superior. (Drake on Attachment, secs. 699-701; Jones v. Wood, 30 Vt. 268; Creed v. Creed, 161 Mass. 107.) In this instance the defendant applied for neither a suspension of the action nor any stay of execution, and since, as the authorities cited show, the matter pleaded by him constituted no defense, the court was justified in rendering judgment absolute for the sum due on the note. Nor do we see that the costs and attorneys’ fees are on a different footing; the defendant promised to pay attorneys’ fees in case of suit; the garnishment was no bar to the right to sue; hence the recovery of attorneys' fees seems, under the circumstances, necessarily to accompany any recovery at all; and so of the costs which are incidental to the judg [67] rnent. What should have been the effect on the matter of attorneys’ fees and costs if, before final judgment here, the liability of Glugermovich and the consequent force of the garnishment, had been established in the action brought by Coschina, is not now for decision; though we incline to think that in such a case the defendant ought not to suffer prejudice from plaintiff’s failure to pay his own debt, and that the right of the latter to recover attorneys’ fees or costs should be made contingent on his successful resistance of the action in which the debt due to him was attached. (See Shealy v. Toole, 56 Ga. 210; Oriental Bank v. Tremont Ins. Co., 4 Met. 1.) The judgment should be affirmed; but upon the going down of the remittitur the court should permit the defendant on proper notice to show what, if any, pajunent he has made or is compellable to make on account of the attachment of Coschina, and direct the satisfaction of the judgment to that extent. Belcher, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. Harrison, J., Garoutte, J., Van Fleet, J. Hearing in Bank denied. Beatty, C. J., dissented from the order denying a hearing in Bank..