The record-union., 1898-06-11
LIABILITY OF A GARNISHEE.
DECISION IN ARBITRATION By
JUDGE HUGHES.
It Can Be No Greater Than That Of
the Garnishee to the Debtor
Who Was Sued.


him as arbitrator. The decision is as
follows:
In the matter of the submission to ar
bitration by Philip Steiner and f.
Burns.
On the 11th day of April, 1898, Philip
Steiner and F. Burns entered into an
agreement to submit a controversy then
existing between them to arbitration,
and selected the undersigned as arbi-
TRAITOR The facts upon which the con-
troversy arose are as folloWs:
On September 2, 1895, Steiner COM
menced an action in the Justice Court
against one A H. Kuhlman to recover
the sum of S131 TO- alleged to be due
Steiner upon several contracts made
by him with said Kuhlman. On the
same day a writ of attachment was is
sued out of said Justice Court, and a
notice of garnishment on that day reg
ularly served upon said Burns. On the
same day Burns filed his answer to said
garnishment in the following words:
In the above matter, and in answer to
garnishment, I will state that there is
nothing due defendant from me-" Said
writ of attachment, with the proof Of
its service upon Burns, and Burns an
swer thereto were duly returned by the
Constable to the Justice Court. On the
26th day of September, 1896, judgment
was entered in said Justice Court in IA
vor of Steiner and against Kuhlman
for the sum of $12510 which judgment
has never been paid or satisfied in any
particular, and no execution has ever
been issued thereon.
On April 13, 1895, and prior to the
levy of said garnishment on Burns,
perior Court of this county an action
against Burns to recover the sum Of
81, 1,425.37. This action resulted in a
judgment in favor of Kuhlman and
against Burns, on December IA, 1895.
for the sum of S54.61. Thereafter, and
on July H. 1896, on motion of Kuhl-
man, a new trial was granted by the
Superior Court in said action of Kuhl-
man against Burns. From this order
granting new trial Burns appealed to
the Supreme Court which last named
court, on the Sth day of July, 1897 re-
versed the order of the Superior Court
granting a new trial, and awarded
Burns his costs on appeal, amounting
to $3.50
The controversy between Steiner and
Burns is whether or not Burns should
pay Steiner S54.61, the amount Of the
judgment in the Superior Court, in the
case of Kuhlman VS.. Burns, or whether
Burns should pay only S1S.S1, the diff
ference between the amount of said
Superior Court judgment and the
amount Of costs allowed Burns on the
appeal to the Supreme Court
Subdivision 5, Section 542, of the
Code of Civil Procedure of this State,
authorizes the levy Of the garnishment
which Steiner caused to be levied upon
Burns. The entire controversy seems
to have arisen out Of the failure of
Burns to properly call the attention of
the Superior Court, before which the
action of Kuhlman against Burns was
pending, to the fact that he had been
garnisheed. The Supreme Court of this
State, in the case Of Clugermovich VS..
Zicovich, in the 18th Cal, page GA,
said: "A proper mode Of procedure for
the garnishee, under such circum-
stances was long ago pointed out by the
decisions of this court; he may, by
affidavit or other appropriate means,
bring to the attention of the court
where he is sued by his own creditor,
the fact of the garnishment, and apply
for stay of proceedings until the ac-
ton Of the attaching creditor can be
disposed Of" (McKeon VS.. McDermott,
% Cal, 661; McFadden VS.. ODonneIl,
IS Cal. 16o). The Supreme Court then
proceeds to say that, after the atten-
tion of the trial court has thus been
called to the matter of the garnishment
the action will be suspended until the
rights Of the defendant can be ascer-
tained, or the cause may proceed to
judgment and the trial court enter an
order staying execution for such por-
ton Of the judgment as may be neces-
sary to protect the defendant under
the garnishment
Had Burns thus called the matter to
the attention of the Superior Court in
the action Of Kuhlman against Burns,
that court would have pursued one Of
the two courses suggested by the Su-
preme Court in the case just cited,
namely: either have suspended pro-
ceedings in the case of Kuhlman
against Burns, or have rendered tudg-
ment and ordered a stay of execution
thereon, to the amount Of Steiners
claim against Kuhlman. In either Of
these events the result would have been
the same. That is to say, Kuhlman's
judgment against Burns would have
been reduced by the amount of Stein
er's claim against Kuhman, or Stein
er's claim, being in excess of Kuhl-
mans claim against Burns the latter
would have been discharged entirely
In either Of these events Steiners
claim against Kuhlman could not be
set off by Kuhlmans demand against
Burns until the controversy between
kaufman and Burns had been finally
adjudicated. The same was not finally
adjudicated until the decision of the
Supreme Court was had thereon. By
the decision of the Supreme Court it
was determined that Burns was indebt-
ed to Kuhlman in the sum of S5461
less the amount of Burns costs on ap-
peal TO the Supreme Court, which was
$3.50; in other words, that there was
due from Burns to Kuhlman the sum of
S1S.S1
Rood on Garnishment," Section 379,
says: 'In some States a very liberal
rule obtains in favor of the garnishee
in adjusting mutual claims between
him and the defendant, and he is al
lowed to set off any demand contracted
before the service of the garnishment
summons, and becoming due before his
final answer"