Winter v. Krichbaum

By the Court, Upson, J. The plaintiff in this suit, having brought suit himself in justice’s Court against the defendant while the garnishee proceedings were pending against him, he cannot now complain of the defendant because he is in Court. If the pendency of the garnishee proceedings would have been a bar to a suit brought by the original defendant against the garnishee, it would have, also, been a bar to any action brougb [121] by the garnishee against the original defendant; but we.do not consider that, on the facts in this case, it was an absolute bar to a suit, by either of such parties, although, in a proper case, and on a proper showing, it might be a cause for a oontiuanee, or for staying proceedings, and: perhaps, in a justice’s Court might, in some cases, be a good ground for a plea in abatement, in order to protect the rights of the garnishee. The only proof in the Court below was the service of the garnishee summons, returnable at a future day, and the garnishee himself had brought the suit which was on trial. The set-off could only be allowed for the full amount proved.- The writ of wtiorari has removed the judgment and .proceedings, therein, into this Court, so that if any judgment has been, or is likely to be, rendered in the garnishee proceedings in this Court, it has the power, on a proper showing, to protect the rights of the garnishee, by staying proceedings for collection of the judgment in this suit. In the Court below, no application for a continuance appears to have been made by the plaintiff, in order to await the result of the garnishee proceedings, nor did he see fit (as he might have done) to discontinue his suit, and¡ for aught that appears, the whole garnishee proceedings may have been abandoned. It has been well said in Smith vs. Blatchford, 2 Ind., 184, that the defendant’s interest may seriously suffer by postponing the securing of the gasnishee’s debt to him. until his litigation with the plaintiff is terminated. The garnishee may be in doubtful circumstances, making legal proceedings against him necessary for securing the demand; or, he may be about to remove, or abscond, out of the jurisdiction of the Court, or to dispose of his property in fraud of his creditors, justifying an attachment against him., self; and yet, if he may plead the attachment in abatement of a suit by the defendant against him, his debt to the defendant may be entirely lost. The garnishee can he in nowise injured by the double proceedings against him; for no Court, upon, being duly informed in a proper manner of the fact of the two proceedings, would hesitate to take such measures as would effectually secure the garnishee against double liability. This might be easily done by suffering judgement'to be rendered against him in the suit, if that were in a condition for judgment [122] before garnishment, and the money to be collected and held subject to ths attachment. 9 Alabama, 887; 7 do., 157; 20 Vt., 139; 8 Mass., 456. Drake on Attachments, § 701, and cases there cited; also § 699, and cases there cited, showing when garnishment may be pleaded in abatement of susequent suit brought by the original debtor in' the garnishee proceedings against the garnishee. The judgement of the Court below must be affirmed with costs.