Blair v. Hilgedick

Vanderburgh, J. The defendant Hilgedick sued the plaintiff to recover the amount of $379 for goods sold; and, while the action was pending, the latter was garnished by„ Kerr & Bennett, creditors of Hilgedick. The defendant Ide claims to have acquired Hilgedick’s claim against plaintiff by assignment, and appeared as claimant in the garnishee proceedings, which are alleged to be still pending-. The defendant Hilgedick recovered judgment against plaintiff in the suit first mentioned, and the latter brings this action against the parties named, on account of the double claim made against him for the same [25] debt, by Hilgedick or Ide, his assignee, and the plaintiffs in the garnishee action. The court was right in holding that he is not entitled to any part of the relief sought. The defendants Ide and Kerr & Bennett are entitled to pursue their legal remedies in the separate action to which they, as well as Hilgedick and plaintiff, are parties. The pendency of Hilgedick’s action against Blair is no reason for staying or superseding the proceedings by garnishment, or compelling an interpleader. The pendency of the latter proceeding, however, is doubtless ground for a stay of the proceedings in the first-mentioned action to the extent necessary to protect Blair’s rights, and to prevent the liability'of a double payment of the same debt. And it would clearly be the duty of the court to grant such stay upon a proper application therefor seasonably made. The plaintiff had thus an ample and summary remedy in the same action. There is no ground for a separate, independent, equitable action to compel the parties to interplead and settle their rights and claims in such action. If, by his laches or mistake, he has failed to procure such stay, that fact furnishes no additional reason why this action should be maintained. When the defendant in an action is garnished by a creditor of the plaintiff therein, we apprehend the practice is for the court, on the proper application, to stay all proceedings before judgment, or permit judgment to be entered, with stay of execution as to the whole of a part of the judgment, as circumstances may require. Drake, Attachm. (6th Ed.) § 701, note, and cases. Order affirmed.