;KEEP V. INDIANAPOLIl:l & ST. LOUIS R. 00.
(Circuit Oourt, E. D. Missouri.
October 8, ISSl.)
Where two or more railroads, by an arrangement between themselves, establish a route to a certain point, and contract to carry a passenger over their roads to the terminal point, the terminal road is 'liable to him, as a common carrier, if, while being conveyed by it to his destination, he is injured, eithet through the negligence of its immediate employes or others with whom it hll:s contracted for motive power or other service. 2.
SAME-LIABILITY OF PARTY FURNIBlIING MOTIVE POWER TO A RAILROAD.
A corporation furnishing motive power to a railroad company, but not acting, or chartered to act, as a common carrier, is not bound to use more than the ordinary skill and diligence which its employment needs, and is only liable for direct negligence or unskilfulness.
Where a common carrier employs another party to furnish motive power, and through the direct negligence of the latter, a passenger, being conveyed by the carrier, is injured, and the carrier is also at fault, and the passenger brings a suit against each party, and both suits are tried together, the same amount of damages should be rendered against each. Under such circumstances the satisfaction of the judgment in either case should be made to operate as a satisfaction in both.
SAME-SAHE-MEASURE OF DAMAGES.
A party who receives a physical injury through the negligence of another, should be allowed sufficient damages to compensate him for the amount of his expenditures and losses in consequence of the injury, taking also into consideration the extent of his injuries, his sufferings, and the effect of the accident on his p;eneral health.
The above-entitled cases were, by order of the court, tried together. In the case against the Indianapolis & St. Louis Railroad Company the plaintiff alleged in his petition that the defendant was a common carrier of passengers over a railway extending from the city of Indianapolis, in the state of Indiaua, to the city of St. Louis, in the state of Missouri; that for a valuable consideration it contracted to convey him as a passenger carefully and safely from Indianapolis to said city of St. Louis; that while he was in a car of the defendant, and was being transported under said contract, the defendant negligently, carelessly, and unskilfully managed and handled said car so that it was violently thrown off the track and overturned, by reason whereof he received serious bodily injuries and suffered greatly, both mentally and physically, and was forced to payout large sums of money. For all of which he asked damages in the sum of $50,000. v.9,no.1l-40
The defendant put in a general denial. In the case against the Union Railway & Transit Company, of St. Louis, the plaintiff alleged that the defendant was a common carrier of passengers for hire in cars drawn by steam-power over a certain railway extending from a point in the city of East St. Louis, in the state of Illinois, to a point in the city of St. Louis, in the state of Missouri, over a bridge across the Mississippi river, which railway said defendant controlled and managed; that while the plaintiff was lawfully in a car under the control and management of the defendant, on said railroad in the city of East St. Louis, to be transported as a passenger by defendant to said city of St. Louis, in the state of Missouri, and while it was the defendant's duty to carry him safely over the road to said city of St. Louis, Missouri, said car was, through the carelessness and unskilfulnessof the defendant, thrown from the track of said road; and that in consequence the plaintiff was greatly injured, etc. In this case, also, the plaintiff asked for $50,000 damages. The defendant denied that it was a common carrier. and :::.lso denied all the other material allegations of the petition. The cases were tried before a jury. The evidence introduced tended to prove the following facts: In December, 1878, the plaintiff purchased a through ticket froni New York to St. Louis, Missouri, one of the coupons of which called for a passage over the Indianapolis & St. Louis Railroad. Before reaching East St. Louis the conductor of the train took up the coupon of plaintiff's ticket covering the ride from Indianapoli3 to St. Louis, Missouri, and gave plaintiff a ticket or check entitling him to ride from East St. Louis over the bridge and through the tunnel to the place of his destination-St. Louis, Missouri. There was contract between the railroad company and the Union Railway & Transit Company by which the last-named company hal;lled 'all 'the cars of the·former between St. LOl;lis and East St. Louis, back and forth, for a specified consideration; the track of the Indianapoli8 & St. Louis Railroad Company not extending beyond East St. Louis. Trains going westward were delivered to the Union Railway & Transit Company at St. Louis. The track· of the Ohio & Mississippi Railroad Company crosses the tracks of the Union Railway & Transit Company in East St. Louis about 400 feet north of the Relay depot, at right angles. At this llrossing a watchman in,tha, employ of the latter company is constantly stationed. The morning of the accident the train of the
KEEP V. INDIANAPOLIS & ST. LOUIS B.
Indianapolis & St. Louis, consisting of one baggage car, two passenger coaches, and a sleeping car, pulled across the track of the Ohio & Mississippi about 10 or 15 feet, and then stopped. At the time done a gravel train was standing on the track of the Ohio & this Mississippi, waiting to come over the crossing. - The engine of this gravel train was on the west end of it, and when the passenger train of the Indianapolis & St. Louis had cleared the crossing the watchman stationed there gave the signal to the gravel train to start. Accordingly that train was put in motion and began approaching the crossing, which was about 150 feet from its first gravel car. As soon as the passenger train stopped, the Indianapolis & St. Louis engine that had been hauling it was cut off and moved away to the round-house; then the engine of the Union Railway & TraLsit Company backed up from a. switch a.nd attempted to couple on to thispa.ssenger train. In doing so it pushed the tra.in backward. so that the rear end of the sleeper in which plaintiff was riding was over the crossing down which the gravel train of the Ohio & Mississippi was moving, and a collision .ensued, the sleeping car was thrown over and wrecked, and the plaintiff, who was riding in it as a passenger, received the injuries sued for. At the time of the accident the train had not reached the Relay in East St. Louis, where its passengers are discharged for that station. L. B.Valliant and Joseph Dickson, for plaintiff. John T. Dye, for 1. & St. L. R. Co. S. M. Breckenridge, for U. R. & T. Co. TREAT, D. J., (charging jury.) These two cases have been tried at the same time, yet each is a separate case, to be determined on law and facts applicable thereto, requiring a. distinct. verdict. The plaintiff alleges that he received a through ticket from New York to St. Louis, one of the coupons of which called for passage over the Indianapolis & St. Louis Railro.ad; that- said coupoil ticket was taken up while he was on said road, by the conductor or some other officer thereof, and in lieu thereof he received a bridge and tunnel ticket to St. Louifl; that while in East St. Louis, on the train bound for St.· Louis, he was injured through the negligence of the defendant road, for which injury he claims damages. If the said railroad was one of several, whereby a continuous through route from New York to St. Louis was established by an arrangement among themselves, and the defendant railroad was the , terminal road at St. Louis, with bridge and termina.l arrangements .for. itself. alid if the -injury complained 'of. happened at East St.
Louis, through the negligence of the defendant, either acting directly through its immediate employes or acting by other agents with whom it had contracted for intermediate service, then said railroad 'is liable. The various matters presented in evidence concerning the relations of the Indianapolis & St. Louis Railroad and the Union Railway & Transit Company call upon the court to determine, as a quescion of law, whether-First, the liability of the Indianapolis & St. Louis Railroad ceased, as a common carrier, at or before the time of the accident; and, second, whether the Union Railway & Transit Company had at that time imposed upon it, also, the duties of a common carrier. The duties of the Indianapolis & St. Louis Railroad Company to the plaintiff as a common carrier, if the facts are as alleged, did not cease until the arrival of the train at St. Louis, although it may have entered into a contract with others to furnish the motive power for hauling the train over the bridge and tunnel. If it was not one of the connecting roads for a through route, its liability ended at the termination of its route. As to the Union Railway & Transit Company, its liabilities are not those of a common carrier. It had entered into no personal contract with the plaintiff, unless it was one of the common carriers in the through route. But the charter of the latter company does not make it a common carrier as to operations in East St. Louis, nor do any of the contracts produced. Hence, the Union Railway & Transit Company is not liable to the plaintiff for any injury sustained, unless it was guilty of direct negligence or unskilftilness, causing the said injury. If that company did, through such negligence or unskilfulness, cause the injury alleged, it must respond in damages; otherwise, not. Thus, the jury will decide-First, did the plaintiff sustain any injury; and, if so, what is the amount of damages to be awarded him. Second, whether the injury was sustained by plaintiff from negligence of the Indianapolis & St. Louis Railroad, or from the negligence of its agents. Third, as the liability of the Union Rail. way & Transit Company rests upon the degree of negligence of which it was guilty, whether its direct negligence or unskilfulness caused the injury. It was not to the extraordinary diligence required f)f a common carrier, but to the ordinary diligence and skill which its employment needs. It must be understood that, so far as the plaintiff is concerned,
INDIANAPOLIS & ST. LOUIS R. CO.
his cause of action may be against one or both of the defendants, although he will ultimately be allowed to receive compensation only once. H the plaintiff is entitled to rec9ver, the amount of damages to be allowed must be sufficient to compensate him for the amount of expenditures and losses by him sustained in consequence of such taking also into consideration the extent of his injuries, the sufferings by him undergone therefrom, and the effect of the accident on his general health. The jury, through their foreman, informed the court that they had agreed upon damages, and wished "to know whether a judgment against both companies will hold, or can it be assessed against one through the negligence of its agents." TREAT, D. J. If each company is at fault, tho same amount GZ damages should be rendered against each. The jury found a verdict for the plaintiff, and awarded him $7,500 damages against each defendant, and the court ordered that the satisfaction of the judgment in one case should operate as a satisfaction in both.
NOTE. It scems clear that the questions of law arising upon the foregoing facts were, on the whole, correctly put to the jury by the learned and experienced judge who presided at the trial, and with the terseness and brevity which is his habit. 1. In the first place, assuming that the plaintiff was injured through some failnre or fault itl tbe means of transportation employed in carrying him from East St. Louis to St. Louis, there is no doubt of the liability of the Indianapolis & St. Louis Railway Company; for his contract was with this company. The recognized American doctrine with reference to the contract for the carriage of passengers which is evidenced by the ordinary railway coupon ticket is. that it is a distinct contract with each carrier who, under it, undertakes the service of carrying the purchaser of the ticket. Chica.qo. etc., R. Co. v. Fahey, 52 Ill. 81 iKessler v. New York, etc.,R. Co. 6IN. Y; 538; Milnor v. New York, etc., R. Co. 53 N; Y. 363; Knight v.Portland. etc.. R. Co. 56 Me. 234; Bj'ook v. Grand T1'1.J,nk R. Co. 15 Mich. 332. 'fhe principle on which the American courts proceed in so holding is, that the company, which sells the coupon ticket over its own and connecting roads, acts,as the agent of the connecting companies for the purpose of making the. contract of carriage over their roads. In this respect the English courts differ from tlieAmerican. The former courts hold that such a contract is a contmct with the first carrier-the carrier who sells the ticket, only; and that there is no priVity between the passenger :>;ld
the other carriers. The first carrier undertakes the service for the entire transit, and the others are but the agents of the first, to carry out the undertaking; and hence. for any non-feasance in carrying it out, they are, upon wellsettled grounds, liable, not to the passenger, for they are. not in any privity of contract with him, but to the first carrier, for whom they have undertakeu the service. Hence. in the case of loss of baggage of the passenger, under the English rule, the company &elling the ticket alone is liable, although the baggage may have been lost on the line of one of the connecting carriers. Mytton v. Midland R. Co. 4 Hurl. & N. 615; S. C.28 L. J. (Exch.) 385. Whereas, under the American rule. either the company selling the ticket. or the carrier losing the baggage would be liable. But a direct injury to the passenger stands on a different footing from the loss of baggage. Here the passenger has. both under the English and the American doctrine, an action against the carrier on whose line the injury was received. It is a case of the breach of a contract, and also a case of mere tort; for the passenger would have an action although there were no contract. and the undertaking to carry him were gratuitolls. Phila. & Readin.,! R. Co. v. Derby, 14 How. (U. S.) 468; steam-boat New World v. King, 16 How. (U. S.) 469; Todd v. Old Colony R. Co. 3 Allen, 18; S, C. 7A.lIel., 207; Rose v. Des Moines Valley R. Co. 39 Iowa, 246; Jacobus v. St. Paul, etc., R. Co. 20 Minn. 125. The subsequent carrier having invited or permitted the passenger to travel on its train, is bOlludto make reasonable provision for his safety; and for a failure of this duty, the pltssenger may maintain an action against it as for pure tort. Ben'ingel' Y. Great Eastern R. Co. 4 C. P. Div. 163; Foulk.y v. Metropolitan Dist. R. Co. Id. 267; Johnson v. West Chester, etc., R. Co. 70 Pa, St. 357. It has always been the law that a carrier who has inflicted an injury on a passenger maybe sued in tort. Ansell v. Water/lOuse, 2 Chit. 1; S. C. 6 Maule & Seiw.385; Bretherton v. Wood, 6 J. B. :Moore.141; S. C. 8 Brod. & Ring. 54; Bank of Orange v. Brown, 9 Wend. 158; McOall v. Forsyth, 4 Watts & S. 179; Pa, R. Co. v. The People, 31 Ohio St. 537; lIeirm v. McCaughan, 32 Miss. 17; Cl'egin V. Brooklyn, ete., R. Co. 75 N. Y. 192; Saltonstall v. Stockton, 1'alley's Decis. 11; Brink V. Potter, 17 Ill. 506; New Orleans, etc., R. Co. V. Tfurst, 36 Miss. 660; Ames V. Union R. Co. 117 Mass. 541. With the case of Dale'v. Hall, 1 Wilson, 281, the practice of declaring in assumpsit succeeded; but this practice did not supersede the practice of suing in trespass or in case. (Bayley, J., in Ansell v. Waterhouse, 2 Chit. 1; S. C.6 Maule & Selw. 385;) and the passenger has his election to sue for the tort, or to waive the tort and sue for the breach of the contract to carry him safely. Taney, C. J., in Saltonstall v. Stoekton, Taney's Decis. 11; Fl'ink v. Potter, 17 Ill. 406. If he sues in contract, he can only sue the carrier with whom he made the contract; and here is where the difficulty arises in American courts. The courts, English and American, almost universally hold that he may sue the first carrier,who, in cases of a contract like the one in the principal' case, is generally deemed to undertake for the safe carriage of the passenger amI his baggage over the entire route embracing the connecting lines. Great Western R.Co. v. Blake, 'i Hurl. & N. 987; S. C. Thomp. Carriers of Passengers, 403; Buxton v. North Eastern R. 00. L. R. 3 Q. B. 549; Kent v. 1Ifidla;'Ld fl. Co. L. R 10 Q. B. 1; S. C. 44 L. J. (Q. B.) 18; Mytton v. lJfid-
KEEP V. INI;llA'NA:POLIB &8T. LOUIS B. CO.
l'rndR.Co.4 Hurl. & N. 614; S. C. 28 L. J. (Exch.) 385; Najac v. Boston, etc., R. Go. 7 Allen, 329; Illinois, etc., R. Co. v. Copeland,24 Ill. 337; Wilson v. Chesapeake R. Co. 21 Gratt.6.54: Williams v. Vanderbilt, 28 N. Y. 217: S. C.29 Barb. 401: Hart v. Ren.sseltuJr. etc., R. Co. 8 N. Y. 37; Burnell v.New York, etc., R. Co. 45 N. Y. 184; Weed v. Saratoga. etc., R. Co. 19 Wend. 534; Candee v. Pa. R. Co. 21 Wis. 582: S. C. Thomp. Carriers of Pass. 419;' Carter v. Peek, 4 Sneed, 203. It has been supposed, however, that extrinsic evidence is admissible to show the real nature of the contract, whether the first carrier did, in fact, assume to carry the passenger for the entire distance called for by the ticket or tickets. This proceeds upon the idea that the ticket is not a contract, but amele token, and .that its meaning may well be explained by parol. Quimby v. Vandel'bilt, 17 N. Y. 306. A similar view obtains in Tennessee, Nashville, etc., R. Co. v. Spl'ayberry, 9 Heisk. 852: S. C. 1 Cent. Law J. 541. But this view is questionable. It is no doubt true as a fact that nearly all the American railwayB have running connections :with each other. 80 that one railway company will issue tickets at any principal city, which will be. good over any intermediate connecting road which it may name other city in the country. It should seem that tlle law Qught to affix a definite meaning to a practice whicll has become so general and 80 uniform, not leave the rights of the traveling public to, the sport of parol testimony. . . But it may be inconvenient for the passenger who has sustained damage through the failure of the last connecting carrier to perform its part of the understanding, to go back to the place of starting and sue the first carrter for. breach of the contract to carry. Some courts have, therefore. adopted the view that in a contract such as that in the principal case, the carrier selling the tickets is but the agent of the other connecting carriers to sell the tickets for them, and account to them for the proceeds. Knight v. Portland, etc., R. Co. 56 Me. 235; F-urstenhiem v. Memphis, etc., R. Co. 9 Heisk. 852: S. C. 1 Cent. Law J. 541: Hood v. New YOl'k, etc., R. Co. 22 Oonn. 1. But this conflict of view is of little importance, where the passenger's cause of action is a personal injury, In such cases, he now sues in tort, especially as he may be able to get exemplary damages in this forUl of action. which he could not have, if suing in contract. It is only incase of the carriage of goo(ls, or in case of the loss of a passenger's baggage, that the question becomes important. In tIle former case,as pointed out by a recent able writer, the-American courts generally limit the liability of the carrier, in the absence of special contract, to its own line. Lawson, Carriers, § 240. In the latter case, the rule is that the loss falls on t.he particular carrier in whose hands the baggage was lost. that is to say, whatever may be the liability of the carrier selling the ticket, each of the connecting carriers., whose conductor or other proper agent recognizes the ticket and undertakes .to carry the passenger in pursuance of it, iu case it comes into becomes responsible for the safe carriage of his his handB-. Chicago, etc., R. Uo.. v. Fahey,52 Ill. 81. But the counecting carrier would not be responsible w.ithout;proof that the baggage did come into his York, ctc., R. Co. 61 N. Y. 538. See Milnor v. possession. Kessler v. New York, eta., R. Co. 53 N. -yo, 363. 2. The.fact that t.he injury to tbe plaintiff might have been the result of
the negligence of the Union Railway & Transit Company, clearly would not alter the liability of the Indianapolis & St. Louis Railroad Company; for the latter had constituted the former their agent to complete the transit. In such cases, the general rule is that the carrier who uses the line and means of transportation of another company is responsible for the negligence of such other company. ., Railway companies;" said Lord Cockburn, "ought, at least, to use due care to keep the line over which they contract to carry passengers, in a safe condition. There is no doubt that this is the obligation which attaches to a railway company which undertakes to convey passengers through the whole distance of their line; and if, by arrangement with another company, they convey passengers over the whole or part of another line, the same obligation attaches, and they make the other company their agent, and on their part, they undertake that the other company shall have their line in proper condition." Great Wester'n R. Co. v. Blake, 7 Hurl. &; N. 992; S. C. Thomp. Carriers of Pass. 403. "A company," said Lush, J., in another case, "undertaking to carry passengers over another line, is answerable fop negligence happening on it, just as much as if it happened on their own line." Buxton v. North Eastern R. Co. L. R. 3 Q. B. 549, 554. So, in the supreme court of New Hampshire, it has been said: "By using the railroad of another corporation as a part of their track, whether by contract or mere permission, they would ordinarily, for many purposes, make it their own, and would assume towards those whom they had agreed to receive as passengers all the duties resulting from that as to the road; and, if accident resulted to such passengers from any failure of duty of the owners of the road, for which they would be responsible if the road was their own, their remedy over would be against the owners." Mur'ch v. Concord R. Co. 29 N. H. 35. To the same effect are Seymour v. Chicago, etc., R. Co. 3 Biss. 43; John v.Bacon, L. R. 5 C. P. 437; Peters v. Rylands, 20 Pat St. 497; S. C.l Philadelphia, 264; McLean v. BW'bank, 11 Minn. 277. So far as 'we know, the only contrary American decision is one in which the opinion was delivered by Judge Redfield, decided in 1857. Sprague v. Smith, 29 Vt. 421. Notwithstanding the eminent character of the judge who wrote the opinion, it is obviously unsound, and opposed to the entire weight of authority, English and American. 3. A more interesting. question relates to the right of action which the plaintiff had against the Union Railway & Transit Company. Aside from any questions of imputed negligence,-that is, contributory negligence of the passenger's own carrier,-nnder what circumstances, if any, has he a right of action against a carrier with whom he is in no privity of contract. and who acts simply as the agent of the carrier which has undertaken to carry him? This question has been mooted in several cases where it was unnecessary to decide it, because the passenger had bronght the action against his own carrier. Mar-tin, D., in Birkett v. Whitehaven Junction R. Co. 4 Hurl. & N. 730, 737; Crompton, J., in Great Western R. Co. V. Blake, 7 Hurl. & N. 987, 994; Bramwell, B., in Wright v. Midland R. Co.; L. R. 8 Exch.137, 143; Bell, J., in Murch v. Concord R. Co. 29 N. H. 9, 35. The answer is simple. ITe has the same right of action that a passenger would have for a personal injury against a stage-clriver who was not the proprietor of the means of t.ransportation. For an act of non-feasance on the part of one who is the agent or
KEEP V. INDIANAPOLIS & ST. LOUIS R. 00.
servant of another,-that is, a mere failure to perform the duties of his agency or service,-a stranger has no action against the agent or servant, because the latter has failed in duty only to his principal or master. Hill v. Caverly, 7 N. H. 215. But if the servant or agent, whether executing the orders of his master or principal or n!>t, does a positive act of misfeasance or trespass, whereby another person is injured, he is liable to an action therefor by the person injured. Harriman v. Stowe, 59 Mo. 93; S. C. 2 Thomp. Neg. 1057; Moore v. Snyrlam, 8 Barb. 358; Wright v. Compton, 53 Ind. 337. In some cases the principal and agent may be jointly sued; because if one commands a trespass and another executes it, both are principals, (Hewett v. Swift, 3 Allen, 420; S. C. 10 Am. Law Reg. 505; Whitamore v. Waterhouse, 4 Car. & P. 383, per Parke, J.;) and there seems no difficulty about this under the codes. Montfort v. Hu,qhes, 3 E. D. Smith, 591; Phelps v. Waite, 30 N. Y. 78; Snydam v. Moore, 8 Barb. 358; W1'igh,t v. Compton, 53. Ind. 337. See also New Orleans, etc., R. Co. v.Bailey, 40 Miss. 395; Fletcher v. Boston, etc., R. Co. 1 Allen, 9; Illinois, etc., R. Co. v. Kanonse, 39IIl. 272. Whether the learned jUdge in the principal case was right in directing the jury that the Union Railway & Transit Company was not a common carrier need not be discussed; because it is conceived that its liability would be the same for 3n injury to a perl:lon while hauling him over its road, whether it be called a common carrier or not. Any debate about degrees of negligence in such a case would be misleading; for" when carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety reqUire that they should be held to the greatest possible degree of diligence. * * * Any llegligellce in such cases may well deserve the epithet of gross," Phila. & Reading R. Co. v. Derby, 15 How. (U. S.) 486; Steam-boat New World v. King, 16 How. (U. S.) 469. The Union Railway & Transit Company may not be technically a common carrier; but in the prosecution of its business it has the custody of human beings. and the care of their lives, exactly as it would have if it were a railway common carrier, and unquestionably it is subject to the same obligation of care in the prosecution of its business. In Schopman v. Boston. etc., R. Co. 9 Cush. 24, it was ruled that a railroad company which receives on its track the cars of another company, placing them under the control of its own agents and servants, and drawing them by its own locomotives, over its own road. to their place of destination, assumes towards the passengers coming upon its road in such cars the relation of a common carrier of passengers, and all the liabilities incident to that relation. St. LouiB. SEYMOUR D. THOMPSON.
PRATT v. ALBRIGHT, Defendant, and another, Garnishee.
(Circuit Uourt, E. D. Wisconsin.
October Term, 1881.)
1. REMOVAL OF CAUSES-GARNISHMENT UNDER THE STATUTE OF WlscoN,m,.
Proceedings in garnishment, instituted under the statute of Wisconsin, are auxiliary to the main action, when considered with reference to the right of removal to the federal court.
2. CASE STATED.
In a court of the state of Wisconsin, garnishee proceedings were instituted concurrently with the commencement of an action. The garnishee answered denying all indebtedness or liability to the principal defendant. The main action proceecled to judgment; and thereafter, and while the garnishee proeeedings were still pending, the plaintiff, who was a citizen of a different state from that either of the defendant or garnishee, had the cause removed to a federal court. On motion to remand the cause to the state court, held, that the removal, haVing been made after a judgment had been rendered in the main action, was too late, and the cause must be remanded. -
Garnishee Proceedings. Motion to remand. Goodwin x Benedict, for motion to remand. Hastings x Greene, contra. DYER, D. J. A i>tatute of the state of Wisconsin provides that either at the time of the issuing of a summons, or at any time thereafter before final judgment, in any action to recover damages founded upon contract, express or implied, or at any time after the issuing in any <lase of an execution against property and before the time when it is returnable, proceedings of garnishment may be had by the plaintiff in the action against any person indebted to the defendant, and a course of procedure is prescribed by which the garnishee may be required to answer as to any such indebtedness, and may be made amenable to the orders of the court wherein the principal action is pending. It is further provided that when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, a.nd the proceeding is to be deemed an action by the plaintiff against the defendant in the principal suit and the garnishee, as parties defendant. The statute also authorizes the defendant in the principal action to defend the proceeding against the garnishee, and the garnishee, at his option, to defend the principal action for the defendant if the latter does not defend. With these statutory provisions in force, the plaintiff herein commenced a suit in the state court against the defendant Albright to recover the amount due upon an accepted bill of exchange, and, concurrently with the commencement of that action, instituted