Near v. Mitchell

Michigan Supreme Court

Near v. Mitchell

2 Mich. N.P. 129

DecidedJuly 15, 1871

StatusPublished

This text of 2 Mich. N.P. 129 (Near v. Mitchell) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Near v. Mitchell, 2 Mich. N.P. 129 (Mich. 1871).

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Opinion

Opinion by

Campbell, C. J.

This was an action of assumpsit. Defendant pleaded the general issue and gave notice that [130]*130he would show^hat at the time the suit was commenced, garnishee proceedings were pending against him as debtor oí 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 $255 75 and that when the suit was commenced, garnishee proceedings were pending as set lorth in the notice, but thht they had since been determined by the rendition of judgVnent'against Hubert in the principal case. On the coming in of the report defendant moved for judgment upon it.

The Circuit Judge held that the suit was prematurely brought and could not be maintained when it was shown that a garnishee proceeding had been commenced against the defendant as plaintiff’s debtor already. Held, That in this decision the Circuit Judge erred. The proper course in the case was for defendant to' plead in abatement, not in bar, if he would take advantage of the pendency of the other suit. The statute does not change this, but simply suspends the creditor’s right to recover' until the garnishee proceeding shall be determined.

The judgment, together with all proceedings subsequent to the report of the referee, was reversed and the cause was remanded for further proceedings, with the costs of the Supreme Court.

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Opinion by

Campbell, C. J.

This was an action of assumpsit. Defendant pleaded the general issue and gave notice that [130]*130he would show^hat at the time the suit was commenced, garnishee proceedings were pending against him as debtor oí 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 $255 75 and that when the suit was commenced, garnishee proceedings were pending as set lorth in the notice, but thht they had since been determined by the rendition of judgVnent'against Hubert in the principal case. On the coming in of the report defendant moved for judgment upon it.

The Circuit Judge held that the suit was prematurely brought and could not be maintained when it was shown that a garnishee proceeding had been commenced against the defendant as plaintiff’s debtor already. Held, That in this decision the Circuit Judge erred. The proper course in the case was for defendant to' plead in abatement, not in bar, if he would take advantage of the pendency of the other suit. The statute does not change this, but simply suspends the creditor’s right to recover' until the garnishee proceeding shall be determined.

The judgment, together with all proceedings subsequent to the report of the referee, was reversed and the cause was remanded for further proceedings, with the costs of the Supreme Court.

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Bluebook (online)

2 Mich. N.P. 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/near-v-mitchell-mich-1871.