Keith v. Harris

9 Kan. 386 | Kan. | 1872

The opinion of the court Avas delivered by

Valentine, J.:

Only tAVO questions are presented for con-, sideration in this case. First, can a judgment-debtor be held as garnishee of the judgment-creditor in favor of a creditor of the judgment-creditor, Ashere the two actions are in the same court? We must answer this question in the affirmative. For authorities upon this p>oint* see Drake on Attachments,. §§ 622 to 627, and cases there cited. It is possible there may be some debts, or rather credits, so intimately connected A\dtb other matters that to attempt to subject them to garnishment piroceedings Avould require the exercise of powers not possessed by the court. Or it is possible that other insuperable difficulties might arise, so as to preclude the possibility of subjecting-such credits to garnishment proceedings; and in all such cases, such credits must of course be exempt from such pro■ceedings. But our statutes do not in terms exempt any credit ■of any kind whatever. Civil code, §§ 193, 206, 215, 218, '219. We would therefore infer that it is only where insuperable difficulties arise that any credit can be considered as ■exempt from garnishment proceedings; and as no insuperable ■difficulty arises in this case we think the judgment was the ■subject of garnishment.

Second: The next question is whether injunction will lie in a case like this to restrain the collection of the judgment pending the'garnishment proceedings. We must also answer ■this question in the affirmative. In the present case, after the garnishment process was served on the judgment-debtor the judgment-creditor caused an- execution to be issued, and the ¡sheriff was about to seize and sell the property of the judgment-debtor to satisfy said judgment. This action was brought to restrain the collection of said judgment pending the garnishment proceedings; and we think'such an action will lie. Otherwise the judgment-debtor might, after the ¡sheriff had sold his property to satisfy said judgment, again have to pay the amount of the judgment to the creditor of the judgment-creditor. So far as we now see, injunction is .the only adequate remedy for such a case.

These are the only questions presented to us, and the only ■ones which we decide. They were presented by the plaintiff in error. The defendant in error has made no appearance in this court; so we suppose he considers these as the only questions in the case.

The order of the judge of - the court b.elowis reversed, and the cause remanded, with the order that a temporary injunction be allowed, and such further proceedings taken as may .be proper in the case.

All the Justices concurring.