23 Mich. 382 | Mich. | 1871
This appears to he an action of assumpsit. The defendant pleaded the general issue, and gaye notice with his plea that he would show on the trial that .at the time the suit was commenced, garnishee proceedings were pending against him as debtor of the plaintiff in a suit brought by •one Hubert. The case was sent to a referee, who reported that defendant was indebted to the plaintiff in the sum of two hundred and fifty-five dollars and seventy-five cents. He also found that when the suit was commenced, garnishee proceedings were pending as set forth in the notice, but
“ This suit having been commenced during the pendency of the proceedings in garnishment, referred to in said report, against the defendant, I deemed, and so decided, that this present suit was improperly and prematurely commenced, and could not, therefore, be maintained, and that the commencement and pendency of such proceedings in garnishment might be properly proven by the defendant, and be made available as a defense in this action under his plea and notice filed in this cause, and judgment was therefore entered in favor of the defendant for his costs of suit to be taxed; to all of which decisions and judgment the plaintiff in due time excepted. I also find that the plaintiff, by his counsel, at the argument, moved the court for a judgment against the defendant for two hundred and fifty-five dollars and seventy-five cents, in accordance with the report of the referee, which was denied for the same reasons above stated; to which decision the plaintiff by his counsel in due time excepted.”
The case is now brought to this court by writ of error with bill of exceptions. The defendant raises the question whether the point made can properly be presented by bill of exceptions, and whether it is not necessary to settle a case for the purpose; but we have no doubt the one course is as much open to the party as the other.
Hpon the question of law presented for his decision, we think the circuit judge was clearly in error. The defendant does not dispute that, as a general rule, the pendency of another suit should be pleaded in abatement and not in bar, but he relies upon the statute as making an exception
The judgment, and all proceedings subsequent to the report of the referee, must be reversed with costs of tbis court, and the cause remanded for further proceedings.