Ostram v. McQueen

By the Court,

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.