Ostram v. McQueen

Circuit Court of the 10th Circuit of Michigan

Ostram v. McQueen

1 Mich. N.P. 91

CourtCircuit Court of the 10th Circuit of Michigan

DecidedJuly 1, 1869

StatusPublished

This text of 1 Mich. N.P. 91 (Ostram v. McQueen) is published on Counsel Stack Legal Research, covering Circuit Court of the 10th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ostram v. McQueen, 1 Mich. N.P. 91 (Mich. Super. Ct. 1869).

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Opinion

By the Court,

Sutherland, J-

The pendency of the proceedings against defendant as garnishee, when this suit was brought, is insisted on as a bar under the'general issue. § 4796, C. L.

As the plaintiff’s right is limited to reeoyey the excess and he is at liberty to recover that at same time, (§4797, C. L.,) the pendency of the proceedings against the defendant as garnishee is at most only a temporary suspension of the right of action. Is this a good defense to the merits ? I think it should have been pleaded in abatement, for it only suspends the right of action, and does not take it away altogether. Green’s Pr., §§ 325, 350; Percival vs. Hickey, 18 John., 257; 19 Wend., 207; 2 Mich., 178.

The objection ceased to have any force when the judgment was rendered.

If there was error in the charge of the Justice to the jury, it cannot be taken advantage of on appeal.

Judgment for plaintiff.

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By the Court,

Sutherland, J-

The pendency of the proceedings against defendant as garnishee, when this suit was brought, is insisted on as a bar under the'general issue. § 4796, C. L.

As the plaintiff’s right is limited to reeoyey the excess and he is at liberty to recover that at same time, (§4797, C. L.,) the pendency of the proceedings against the defendant as garnishee is at most only a temporary suspension of the right of action. Is this a good defense to the merits ? I think it should have been pleaded in abatement, for it only suspends the right of action, and does not take it away altogether. Green’s Pr., §§ 325, 350; Percival vs. Hickey, 18 John., 257; 19 Wend., 207; 2 Mich., 178.

The objection ceased to have any force when the judgment was rendered.

If there was error in the charge of the Justice to the jury, it cannot be taken advantage of on appeal.

Judgment for plaintiff.

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Bluebook (online)

1 Mich. N.P. 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostram-v-mcqueen-micirct10-1869.

Opinion

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