99 Minn. 305 | Minn. | 1906
This action was brought in the municipal court of the city of Minneapolis to recover upon a promissory note made and delivered by defendant to plaintiff. Among other defenses, defendant set up the pendency of an action in the district court of Hennepin county, wherein E. W. Marshall is plaintiff, and plaintiff in this action is defendant, in which it is sought to charge defendant herein, as garnishee, with the indebtedness due upon the promissory note here in suit. Plaintiff demurred to this defense, and defendant appealed from an order sustaining it.
Several questions are suggested in the briefs of counsel, but it is unnecessary to discuss or decide them at this time. It is urged that,
That the facts set forth in the answer in this case respecting the pendency of the garnishee action constitute a defense by way of a plea in abatement was held in Harvey v. Great Northern Ry. Co., 50 Minn. 405, 52 N. W. 905, 17 L. R. A. 84. The decision in that case, which we follow, controls the one at bar. The question is there fully discussed and authorities cited, a repetition of which in this opinion would serve no useful purpose. The correct practice in such cases is laid down in Blair v. Hilgedick, 45 Minn. 23, 47 N. W. 310, in the'following language: “Where the defendant in an action is garnished by a creditor of the plaintiff, the proper practice is for the court in which the action is pending to grant a stay of proceedings in the action before judgment; or, if judgment is permitted to be entered, to stay execution * * * until the proceedings of garnishment are disposed of.” That case was followed and applied in Harvey v. Great Northern Ry. Co., supra.
In some of the states a distinction is attempted to be made in cases of this kind between actions pending in the same state and those where the garnishment proceeding is pending in another state; but the dis
The order appealed from is therefore reversed, and the cause remanded, with directions that the court below overrule the demurrer and grant a stay of proceedings in the action until the liability of the garnishee is finally determined in the garnishee action.