
    [S. F. No. 13.
    Department One.
    May 28, 1896.]
    V. GLUGERMOVICH, Respondent, v. A. ZICOVICH, Appellant.
    Action on Note — Attachment by Creditor op Plaintiff— Garnishment op Dependant — Stay op Proceedings. —A proper method of procedure for a garnishee who is sued by his creditor upon a note, after a garnishment has been served upon him at suit of an attaching creditor against the plaintiff, is to bring to the attention of the court, by affidavit or other appropriate means, the facts of the garnishment, and to apply for a stay of proceedings until the action of the attaching creditor has been disposed of,- or, if the court allows the action against the garnishee to proceed to judgment, the garnishee may apply for a stay of execution upon enough of the debt to cover the amount of the garnishment.
    Id.—Defense to Note—Attorneys’ Fees—Costs—Credit toon Judgment.—The garnishment of the defendant by an attaching creditor of the plaintiff is not a defense to an action by the plaintiff upon a note given for the debt which was the subject of the garnishment; and where such matter is pleaded by way of defense, and no stay of proceedings is applied for, it is proper to render judgment for the full amount of the-note, and for attorney’s fees stipulated therein, and costs of suit; but. the court should permit the defendant on proper notice to show what, payment he has made or is compellable to make, on account of the attachment, and should direct satisfaction of the judgment to that ex-, 'tent.
    Id.—Effect of Establishing Garnishee’s Liability before Judgment1 —Contingent Allowance of Fees and Costs.—It seems that if the-liability of the garnishee to pay the plaintiff’s debt to his attaching creditor is established before judgment is rendered at suit of plaintiff' against the garnishee, the defendant ought not to suffer from plaintiff’s , failure to pay his own debt, and the right of plaintiff to recover attorney’s fees and costs should be made contingent on his own successful defense of the action in which the debt due to him was attached.
    Appeal from a judgment of the Superior Court of' Santa Clara County. W. G. Lorigan, Judge.
    The facts are stated in the opinion.
    
      William P. Veuve, for Appellant.
    No judgment should have been rendered against appellant while the money, or debt, he owed respondent was still under attachment. (McFadden v. O’Donnell, 18 Cal. 160; Pierson v. McCahill, 21 Cal. 123.) Payment of this judgment by appellant would not have discharged him from liability as garnishee in the attachment suit of Coschina v. Glugermovich. (Code Civ. Proc., secs. 544, 869.) The judgment is erroneous in requiring appellant to pay costs and counsel fees. (Wade on Attachments, secs. 326, 500; Lucas v. Campbell, 88 Ill. 447.)
    
      H. V. Morehouse, for Respondent.
   Britt, C.

Action on a promissory note for the sum of four hundred and seventy-three dollars, made by defendant to plaintiff, and which fell due June 14, 1894; one of its provisions was that in case of suit a reasonable counsel fee should be allowed. On said June 14th Zicovich, the maker, was garnished in respect of his indebtedness on the note in an action brought by one Coschina in a justice’s court against the plaintiff here, said Glugermovich; such attachment was in force when this action was begun—June 15,1894—and the defendant Zicovich pleaded the fact thereof in his answer. The suit of Coschina v. Glugermovich was yet pending and undetermined at the -time of trial of the present case; upon such trial plaintiff recovered judgment for said sum of four hundred and seventy-three dollars, together with a further allowance for counsel fees and costs of suit.

A proper mode of procedure for the garnishee under ■such circumstances 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 facts of the garnishment, and apply for a stay of proceedings until the action of the attaching creditor can be disposed of. (McKeon v. McDermott, 22 Cal. 667; 83 Am. Dec. 86; McFadden v. O’Donnell, 18 Cal. 160.) Doubtless, also, cases may arise where the court would find it expedient, for the purposes of justice, to allow the cause to proceed to judgment, but staying execution upon the whole or enough thereof to provide for the satisfaction of the demand for which the debtor is garnished; the end sought being to enforce payment from him once and only once, and that to the person whose claim against him turns out to be legally superior. (Drake on Attachment, secs. 699-701; Jones v. Wood, 30 Vt. 268; Creed v. Creed, 161 Mass. 107.) In this instance the defendant applied for neither a suspension of the action nor any stay of execution, and since, as the authorities cited show, the matter pleaded by him constituted no defense, the court was justified in rendering judgment absolute for the sum due on the note. Nor do we see that the costs and attorneys’ fees are on a different footing; the defendant promised to pay attorneys’ fees in case of suit; the garnishment was no bar to the right to sue; hence the recovery of attorneys' fees seems, under the circumstances, necessarily to accompany any recovery at all; and so of the costs which are incidental to the judgrnent. What should have been the effect on the matter of attorneys’ fees and costs if, before final judgment here, the liability of Glugermovich and the consequent force of the garnishment, had been established in the action brought by Coschina, is not now for decision; though we incline to think that in such a case the defendant ought not to suffer prejudice from plaintiff’s failure to pay his own debt, and that the right of the latter to recover attorneys’ fees or costs should be made contingent on his successful resistance of the action in which the debt due to him was attached. (See Shealy v. Toole, 56 Ga. 210; Oriental Bank v. Tremont Ins. Co., 4 Met. 1.)

The judgment should be affirmed; but upon the going down of the remittitur the court should permit the defendant on proper notice to show what, if any, pajunent he has made or is compellable to make on account of the attachment of Coschina, and direct the satisfaction of the judgment to that extent.

Belcher, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

Harrison, J., Garoutte, J., Van Fleet, J.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank..  