Opinion
Docket No. 24, Calendar No. 37,552.
Submitted April 4, 1934.
Decided June 4, 1934. Rehearing denied July 2, 1934.
Appeal from Wayne; Ferguson (Homer), J. Submitted April 4, 1934. (Docket No. 24, Calendar No. 37,552.) Decided June 4, 1934. Rehearing denied July 2, 1934.
Bill by Stella Olczynski against Walter Bolibrzuch and Otto Stoll, register of deeds, to enjoin payment of redemption money and for other relief. Bill dismissed. Plaintiff appeals. Reversed and remanded.
Harry J. Lippman, for plaintiff.
Davidow Davidow, for defendant.
Defendant Bolibrzuch had a judgment against plaintiff for upward of $7,000. Thereupon one Clifford Dinus sued Bolibrzuch and served a writ of garnishment upon plaintiff. Plaintiff made disclosure of the judgment indebtedness. Bolibrzuch took out execution upon his judgment, levied upon plaintiff's property, and purchased the same at sheriff's sale. Plaintiff, in order to redeem, paid the sale price to the register of deeds, and then filed the bill herein to restrain the register of deeds from paying the redemption money to Bolibrzuch and the latter from attempting to collect the money as she wanted to be protected under the Dinus writ of garnishment. Suit by Dinus resulted in a judgment for defendant, followed by an appeal now pending in this court. Upon judgment against Dinus of no cause of action against Bolibrzuch, the latter moved the court to dissolve the injunction restraint imposed at the instance of plaintiff. The court held that failure of Dinus to obtain judgment against Bolibrzuch discharged the garnishment proceeding against plaintiff and dismissed her bill.
Plaintiff prosecutes an appeal, presenting the question of whether a writ of garnishment survives failure to obtain judgment against the principal defendant and maintains the status quo pending disposal of a perfected appeal.
The circuit judge held that, under the following statutory provision, the garnishment proceeding ended with failure of plaintiff in that suit to obtain judgment:
"A failure to recover judgment against the principal defendant, or a satisfaction of such judgment, in any manner, shall be deemed a discontinuance of all proceedings against the garnishee." 3 Comp. Laws 1929, § 14897.
May it be said that an unsuccessful endeavor at nisi prius is such a failure to recover judgment as falls within the mentioned statute, or should it be said that, as long as the suit remains a live judicial proceeding, there is as yet no failure to recover judgment?
Counsel for defendant injects much of the Dinus case into his argument but this we cannot consider. Even if there is merit in the claims made it cannot be taken up here for there has been no hearing on plaintiff's bill.
The court was in error in holding that the failure of Dinus to obtain judgment against Bolibrzuch in the circuit court and with an appeal duly taken discharged the garnishment proceeding against plaintiff. Plaintiff, by her bill, merely sought to have matters held without prejudice to her rights, pending determination of whether, as judgment debtor of Bolibrzuch, he should be paid or whether she should respond to Dinus under the writ of garnishment.
The decree dismissing the bill is reversed and the cause remanded to the circuit court, with costs to plaintiff.
NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.