Glugermovich v. Zicovich

Citations

• 113 Cal. 64
• 45 P. 174
• 1896 Cal. LEXIS 744

Syllabus

<p>Action on Note — Attachment by Creditor op Plaintiff— Garnishment op Dependant — Stay op Proceedings. —A proper method of procedure for a garnishee who is sued by his creditor upon a note, after a garnishment has been served upon him at suit of an attaching creditor against the plaintiff, is to bring to the attention of the court, by affidavit or other appropriate means, the facts of the garnishment, and to apply for a stay of proceedings until the action of the attaching creditor has been disposed of,- or, if the court allows the action against the garnishee to proceed to judgment, the garnishee may apply for a stay of execution upon enough of the debt to cover the amount of the garnishment.</p> <p>Id.—Defense to Note—Attorneys’ Fees—Costs—Credit toon Judgment.—The garnishment of the defendant by an attaching creditor of the plaintiff is not a defense to an action by the plaintiff upon a note given for the debt which was the subject of the garnishment; and where such matter is pleaded by way of defense, and no stay of proceedings is applied for, it is proper to render judgment for the full amount of the-note, and for attorney’s fees stipulated therein, and costs of suit; but. the court should permit the defendant on proper notice to show what, payment he has made or is compellable to make, on account of the attachment, and should direct satisfaction of the judgment to that ex-, 'tent.</p> <p>Id.—Effect of Establishing Garnishee’s Liability before Judgment1 —Contingent Allowance of Fees and Costs.—It seems that if the-liability of the garnishee to pay the plaintiff’s debt to his attaching creditor is established before judgment is rendered at suit of plaintiff' against the garnishee, the defendant ought not to suffer from plaintiff’s , failure to pay his own debt, and the right of plaintiff to recover attorney’s fees and costs should be made contingent on his own successful defense of the action in which the debt due to him was attached.</p>