
    Near vs. Mitchell.
    A sued B. B pleaded the “general issue” and gave notice that garnishee proceedings were pending against him by C as debtor of plaintiff. C, however failed in his suit against A, whereupon A demanded judgment against B.' 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 plaintifl’s debtor already. Held, That in this decision the Circuit Judge erred. The proper course in this case was for defendant to plead in abatement and not in bar, if he would take advantage of the pendency of the other
    Error to Ingham Circuit.
   Opinion by

Campbell, C. J.

This was an action of assumpsit. Defendant pleaded the general issue and gave notice that he 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.  