109 Iowa 255 | Iowa | 1899
Soane time prior to January 13, 1892, plaintiff commenced an action against the defendant. The action was aided by attachment, and several garnishments were effected under the writ. A trial of the main action was had, resulting in a judgment for plaintiff, and at the same time, a judgment was taken against one of the garnishees
It is clear that the case ought to be governed by these rules. Plaintiff took his judgment against the garnishee, who, so far as the record shows, is perfectly solvent. By so doing, he, in effect, levied on sufficient property of the defendant — after the defendant had paid the balance — to satisfy his (plaintiff’s) judgment. He-offers no excuse for not levying execution and collecting his claim. Defendant has been prevented from collecting from his debtor, and could take no steps against him to enforce his demand. He was powerless to protect himself by direct action against the garnishee, and was subject to his financial vicissitudes. It will not do to say that he might have paid the main judgment in full, and then proceeded against his debtor. That any execution defendant may do- to- relieve property which is being jeopardized while in the hands of an officer on execution, but he is not obliged to take that course. He may not be able to pay the amount, and trust to success against the garnishee. No such burden should be placed upon him.
It is true that plaintiff, at the time of the hearing on the motion, tendered the judgment he held against the garnishee to the defendant, but he did not offer t0‘ assign it, nor did he do anything until long after defendant had paid the bal-
Plaintiff should have, been diligent in the collection of hi’S judgment against the garnishee; and, if there be any doubts of its collectibility, he, and not. the defendant, should suffer the results of delay. Coburn v. Currens, 1 Bush, 242, and Norris v. Hall, 18 Me. 332, lend support to these conclusions. The motion should have been sustained, and the judgment is REVERSED.