23 Ind. App. 695 | Ind. Ct. App. | 1900
Suit by appellant upon a note for $2,200. To the complaint, which was in the usual form, appellee 'answered in three paragraphs, as follows: (1) General denial; (2) plea of payment; (3) a partial answer, going to the sum of $1,691.54 of the amount due, in which it is averred that, prior to the commencement of this action, the New Albany Ice Company, a Kentucky corporation, brought an action in the Jefferson Circuit Court in said state against appellant to recover a debt amounting to $1,691.54, alleged to be due said company from appellant; that proceedings in attachment and garnishment were also taken in said action, and that appellee was summoned as, garnishee, it being charged that he was indebted to appellant in the sum of $1,691.54; that appellee was not indebted to appellant in any other sum; that said proceedings are yet pending in said Jefferson Circuit Court, and that appellee is liable to pay the said sum of $1,691.54 into said court upon its order. The prayer of this paragraph of answer is that appellee “prays judgment as to said sum of $1,691.54, whether the plaintiff ought further to prosecute his said action.” Appellant replied to the second and third paragraphs of answer in two paragraphs. The first was a general denial; the sec
Before entering upon a discussion of the principle involved, it is necessary to state the facts specially found, for they may materially aid us in arriving at a correct conclusion. The facts specially found are as follows: That no judgment had been rendered in the proceedings in the Kentucky court; that appellee had not filed an answer as garnishee therein; that appellee himself caused said action to be commenced; that appellee is making a defense in said action; that appellee is interested in having said action determined in favor of the New Albany Ice Company; that appellee will be benefited to a greater extent than all others in having said action decided in favor of said company; that appellee himself instituted said action for the purpose of delaying the collection of the note sued on in this action. It was also found that the New Albany Ice Company, on June 7,
The evidencé is not in the record, and from the pleadings and facts specially found we are to determine whether or not the trial court was authorized in ordering a stay of execution without bail as to $1,691.54 of the* judgment, until the further order of the court, “to be made upon the determination of the cause” pending in the circuit court of Jefferson county, Kentucky, as set forth in the third paragraph of answer. Of the power and authority of a court of general jurisdiction to stay execution as to a judgment, or any part thereof, which it has rendered, where the facts warrant, and upon such terms as it may fix within legal or equitable rules, we have no doubt; but the exercise of such power or authority ought to be invoked in the clearest cases only, and where, without it, irreparable injury to one or the other of the parties to the judgment would follow. Appellee seeks to uphold the action of the court below in ordering a stay of execution upon two grounds: (1) That the Eloyd Circuit Court was bound to give full faith and credit to the judicial proceedings of the court in Kentucky, when the same were properly brought to' its notice; (2) where a debtor is joined as a garnishee in an attachment suit brought against his creditor by a third party, and the debt is thereby sought to be reached in the garnishee’s hands, justice demands that no subsequent suit by the attachment defendant against the garnishee shall prejudice the rights of the latter while the prior suit is pending. In a very able brief, in which counsel for appellee has cited many authorities, our attention is called to the fact that three courses have been adopted and pursued by the courts to protect garnishee defendants in subsequent suits against them as debtors to former attach
In Blair v. Hilgedick, 45 Minn. 23, 47 N. W. 310, the court said: “When the defendant in an action is garnisheed by a creditor of the plaintiff therein, we apprehend the practice is for the court, on the proper application, to stay all proceedings before judgment, or permit judgment to be entered, with stay of execution as to the whole or a párt of the judgment, as circumstances may require.”
In Montgomery, etc., Co. v. Merrick, 61 Ala. 534, the-court said: “When, as in the present case, the suits are pending in different courts, the court in which the defendant is suing the garnishee will, on a proper application, stay proceedings until the garnishment is determined, or render judgment with a stay of. execution, which can be subsequently removed, or rendered perpetual, in whole or in part, as justice may require.” To the same effect are the following cases: Yazoo, etc., R. Co. v. Fulton, 71 Miss. 385; Crawford v. Slade, 9 Ala. 887; McFadden v. O’Donnell 18 Cal. 160; Howland v. Chicago, etc., R. Co., 134 Mo. 474. There are many other cases in harmony with'the above, but they need not be cited. We have examined all the cases cited by appellee, and many others. In none of the cases, however, was the question of the bona fides of the attachment and garnishment proceedings questioned.
Upon the record as it comes to us, the court was not authorized or warranted in ordering, that, as to $1,691:54 of