McFadden v. O'Donnell

18 Cal. 160

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Baldwin, J. delivered the following opinion:

Plaintiff sued defendant on indebtedness for work, etc. Before the commencement of this suit, one Webster sued McFadden and got out attachment, upon which O’Donnell was garnisheed as the debtor of McFadden, the plaintiff. Webster recovered judgment against McFadden, but, it seems, proceeded no further. After the commencement of this suit McFadden paid Webster his debt. This matter of the garnishment is insisted on by O’Donnell as presenting a bar or matter 'of abatement to this action. But we think this is not its legal effect. The mere attachment of the debt did not destroy the relations of debtor and creditor between McFadden and O’Donnell. It gave a right to Webster to subject the debt to the payment of his claim; but this right might be waived, or it might be destroyed by the payment of the debt by McFadden. It is true, O’Donnell could not safely pay McFadden as long as this proceeding was in force; and the Court will not compel him to do so, since that would subject him to a double payment in the event of the attaching creditors obtaining judgment. But the court may act in perfect consistency with the rights of all the parties. The proper course is to order a suspension of action by the original creditor until the proceedings of the attachment creditor are disposed of. This order of suspension is enough to secure the rights of all concerned. If the mere pendency of the garnishment worked a disability to sue, the plaintiff might be unreasonably delayed, and, by one or more collusive proceedings, the Statute of Limitations might bar the claim. This doctrine is thoroughly discussed in the case of Crawford v. Slade, (9 Ala. 887) and the eases cited. It is true that some authorities of great weight seem to announce a different rule; but we think the better and more equitable principle is as we have stated it.

Some other points are made, but we think they are not sustained. Whether the contract provided against extra work except agreed to in writing, is immaterial; for the parties could rescind this provision in the contract if they chose, and agree to alterations by parol.

The witness Williams, though agreed upon as arbitrator to settle the disputed points, did not act as such, but the controversy was left to litigation, in which event his testimony was only that of a witness entitled to equal credit as, and no more than other witnesses similarly situated and qualified.

It would answer no useful purpose to go into a more detailed examination of the other propositions.

Judgment afSrmed.

Cope, J.—I concur in the judgment.