Clise v. Freeborne

27 Iowa 280 | Iowa | 1869

Beck, J.

The instruction of the court in regard to the effect of the proceeding of garnishment is erroneous. That proceeding, pleaded as a defense, was not matter in bar of plaintiff’s right to recover, but in abatement only. The pendency of the garnishment proceeding did not discharge defendant from the debt. The cause qf action was in no maimer affected thereby. The obj ect of the proceeding was to transfer the right of the payee of the note to another and to reduce the debt to judgment in his name. No judgment however had been rendered, and the proceeding might have terminated without a judgment. In that case plaintiff would be entitled to recover; but the judgment rendered in this case would bar such recovery. It is obvious, therefore, that the pendency of the garnishment proceeding ought not to constitute a defense in bar to a recovery on the note. It seems to be a well-settled rule that such defense can only be pleaded in abatement. See Drake on Attachment, § 700 et seq., and authorities cited.

It may be properly so pleaded under Eev. § 2969, and the issue upon such a defense should be put to the jury, so that their verdict and the judgment thereon may be distinguished from those rendered upon matter pleaded in bar. Eev. § 3121.

Other objections presented in the assignment of errors are urged in the argument of plaintiff’s counsel. Their consideration is not necessary, because, for the reasons above given, the judgment of the District Court must be

Eeversed.