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pendency of the suit. Although in some States he is presumed to use it unless he pays it into court.2
The foregoing rules are confined in their operation to the garnishee's liability to judgment in favor of the plaintiff for interest accrued pendente lite. When the whole of the debt garnisheed by the plaintiff is not required to meet the plaintiff's claim, it would appear that the garnishee is liable to the principal defendant for interest on the balance of the debt whilst the proceedings were pending 3
16. To Defendant After Garnishment.—We have heretofore stated the effect of garnishment upon the effects or credits in the hands of the garnishee and the rights of the principal defendant, and liability of the garnishee up to the time of judgment.
Garnishment, being an effectual attachment of the credits and effects of the defendant in the possession of the garnishee, it follows that while the garnishment proceedings are pending, if he allows the property to leave his hands, or pays the debt, he does so at his peril
, and it will be no defence to the attachment lien of the plaintiff in garnishment.4
Where judgment has been had against the garnishee in due course of law, it acts as a judicial assignment of the debt which
1. Moore v. Lowry, 25 Iowa 336; Ala. 567; Hagadon v. Campbell, 24 Morris v. Hall, 18 Me. 332; Blodgett v. Gardiner, 45 Me. 542.
It does not matter that the proceed2. Candee v. Webster, 9 Ohio St. ings have been irregular, as long as 452; Work 1'. Glaskins, 33 Miss. 539; they were not void. See Palmer v. Smith z'. German Bank, 60 Miss. 69; Ballard, 3 Stew. (Ala.) 326; Tubb v. Templeman v. Fauntleroy, 3 Rand. Madding, Minor (Ala.) 129. (Va.) 434; Adams v. Cardis, 8 Pick. But garnishee will not be protected (Mass.) 260; McCann v. Board, I
in payment of judgment against himDana (Ky.) 338, in which it is said he self, based on void proceedings, and will be charged interest unless He garnishee may enquire into jurisdiction brings the money into court.
of court rendering judgment against 3. Sickman v. Lapsley, 13 S. & R. defendant in attachment, in a pro(Pa.) 224.
cecding on writ of error to reverse the 4. Even though it were honestly judgment pronounced against himself, made, and with the advice of counsel, and if that court had no jurisdiction, if the same were made unlawfully. Jo- the judgment against the garnishee hann v. Ruiner, 27 Wis. 195.
will be reversed. Pierce v. Carlton, 12 A trustee is liable for goods taken Ill. 358; s. C., 54 Am. Dec. 410. from his possession by a wrong doer Where a suit was commenced by after service of process. Despatch Line garnishment under attachment upon of Packets v. Bellamy Mfg. Co., 12 N. two notes, and afterwards, and before
trial, another note between the same But not if taken before such service parties fell due, and by an amendment of process, and they never came into was included in the complaint, and the his possession again. Kidder v. Page, judgment embraced the amount of all 48 N. H. 38.
three of the notes, held, that as against 5. Webb v. Miller, 24 Miss. 638; a garnishee who pays such judgment, New Orleans R. Co. v. Long, 50 Ala. the same is not absolutely void, al498. See Hitt v. Lacey, 3 Ala. 104, as though the proceedings were irregular to costs.
and the judgment perhaps erroneous; As to the procedure, where garnishee but that the judgment was such is liable to the defendant upon a judg- the garnishee might regard in ment, see Chandler v. Faulkner, 5 making payment, and such as he
is conclusive upon the defendant in the principal action, and will bar his recovery against the garnishee to the amount of the judgment. 1
But a judgment discharging the garnishee upon the ground of non-liability is not conclusive upon the defendant,2 nor is he precluded from recovering more than was paid on the judgment.3
IX. THE EFFECT OF GARNISHMENT.—The service of process of garnishment operates to place the property in the hands of the garnishee, constructively, in custodia legis, and is an effectual attachment of the property and effects of the defendant in the garnishee's possession, differing from attachment by levy only that it gives him the right to hold the garnishee personally
might rely upon in defence to 3. Freeman on Judg., Ø 167; Brown subsequent action against him by the v. Dudley, 33 N. 11. 511; Barton 7'. principal defendant. Schoppenhast v. Allbright, 29 Ind. 489. And this right Bollman, 21 Ind. 280. See also Gunn is available to the assignee of the dev. Howell, 35 Ala. 144.
fendant. Tams v. Bullitt, 35 Pa. St. 1. Ladd v. Jacobs, 64 Me. 347; Brown 308. V. Dudley, 33 N. H. 511; Hirth v. The judgment rendered is not evi. Pfeifle, 42 Mich. 32; Allen v. Watt, 79 dence against the defendant where an. III. 284; Ross v. Pitts, 39 Ala. 605; swer had not been controverted. Jones Morgan v. Neville, 74 Pa. St. 52; B. & v. Kolisenski, 11 Ala. 637. O. R. Co. v. May, 25 Ohio St. 347; 4. Reed v. Fletcher, 39 N. W. Rep. Wigall v. Union Ć. & M. Co., 37 Iowa (Neb.) 437; Northfield Knife Co., 7. 129; Canada v. Detrick, 63 Ind. 485; Shampleigh, 39 N. W. Rep. (Neb.) 788; Sessions v. Slevens, 1 Fla. 233; s. C., 46 Compare Bigelow v. Andres, 31 III. Am. Dec. 339. And such judgment is 3-2. See, however, Smith 2. Clinton a good defence to an action by an as- Bridge Co., 13 Bradw. (III.) 572. signee subsequent to the garnishment. So it has been said that, “Ordinarily Bunker 1. Gilmore, 40 Me. 88; New- property is not in custodia legis until man 2. Manning, 79 Ind. 218; Bush- actually seized and reduced into possesnell v. Allen, 48 Wis. 460.
sion by the officer; under the law of When a debt has been recovered attachment it is by the levy of the offrom a debtor by garnishee process un- ficer that creates the lien." McGarry der an attachment proceeding in a t'. Lewis Coal Co., 93 Mo. 237; 8. C., 3 court of competent jurisdiction in an- Am. St. Rep. 522; Bank of Mo. v. Bredother State, the recovery is a protection ow, 31 Mo. 523; Bigelow v. Andress, 31 in Illinois to the garnishee against III. 322; Walcott v. Keith, 22 N. H. his original creditor, and the fact that 196. the debt may have been put into a judg-, But there authorities which ment does not change the rule. Allen hold that garnishment places the propv. Watts, 79 Ill. 284.
erty in custodia legis. Brashear 0. But a party claiming protection West, 7 Pet. (U. S.) 608; Mattingly i'. against the suit of the principal defend- Boyd, 20 How. (U. S.) 128. Compare ant, subsequent to the garnishment Staniels v. Raymond, 4 Cush. (Mass.) proceeding, because of the judgment 314. therein against him, must show that all 5. Hucker v. Stevens, 4 McLean (U. the proceedings therein are legal and S.) 535; Kennedy 2". Brant, 6 Cranch valid. Edler v. Hasche, 67 Wis. 653. (Ú. S.) 187; Martin v. Fareman, is
However, a judgment against a gar- Ark. 249; Burlingame v. Bell, 6 Mass. nishee without satisfaction thereof, is 318; Swett v. Brown, 5 Pick. (Mass.) no defence to an action by the creditor, 178; Blaisdell v. Ladd, 14 N. H. 129; the principal defendant. Sharpe v. Renneker v. Davis, 10 Rich. (S. Car.) Wharton, 85 Ala. 225.
Eq. 289; Wilder v. Weatherhead, 32 2. Ruff v. Ruff, 85 Pa. St. 333; Puf- Vt. 765; in re Peck, 16 Nat. Bank Reg. fer v. Graves, 26 N. H. 256; Cameron 43; Renneker & Glover v. Davis, 10 v. Stollenwerck, 6 Ala. 704.
Rich. (S. Car.) Eq. 289.
liable for the value of the property in his possession, instead of securing a clear and full lien upon the specific property. It creates no specific lien upon the defendant's property 2 in favor
1. Drake on Attach. (6th ed.) 453; only so far as to restrain his power to Booth ?'. Gist, 39 N. W. Rep. (Iowa) regain his property while it is in the 704; Walcott v. Keith, 22 Fost. (N. H.) custody of the garnishee. So long as 196; Moore v. Holt, 10 Gratt. (Va.) the property is in the custody of the 284; Winner v. Hoyt, 68 Wis. 278; garnishee, the attaching creditor cannot McConnell v. Denham, 72 Iowa 494. resort to his remedy by execution Compare McGarry v. Lewis Coal Co., against the principal defendant. If he 93 Mo. 237; Johnson v. Gorham, 6 Cal. does so, he thereby waives his right to 195.
look to the property in the hands of the No. "vested right” is secured until garnishee, and the debtor at once has final judgment against the garnishee is the right to reclaim the property." Bearendered. Tate v. Moorhead, 65 N. Car. mont v. Easton, 12 Heisk. (Tenn.) 421. 687.
The lien cannot be divested by any In Vermont, garnishment was termed arrangement between the defendant and an “inchoate lien.” Wilder 7. Weath- garnishee. Cottrell v. Varnum, 5 Ala. erhead, 32 Vt. 765; Cooke v. Cooke, 43 229; s. C., 39 Am. Dec. 323. Md. 522; Curtis v. Moore, 20 Md. 93; Legal Effect.—MINSHALL, J.: “The Poley v. Bitters, 34 Md. 650.
legal effect of the garnishment of a In South Carolina, a creditor who debtor of the defendant is where judgsues by attachment, and thus gains a ment is rendered for the plaintiff to lien on assets attached, has no right, for transfer the indebtedness of the garany balance due him after exhausting nishee to the plaintiff in the attachhis lien, to come in with other creditors ment so far as the same may be necesand participate with them in the dis- sary to satisfy the judgment. Secor v. tribution of unattached assets of the Whitter, 39 Ohio St. 218. And as absent debtor. Renneck v. Davis, 10 security is always regarded as an inciRich. (S. Car.) Eq. 289.
dent to the debt, it follows that where Where the statute makes the gar- the indebtedness of the garnishee is senishee liable for property coming into cured by a mortgage the garnishment. his hands and for obligations incurred af- of the indebtedness carries with it the ter service of process, the lien attaches in mortgage. Edwards V. Edwards, 24 such cases the same as to that in pos- Ohio St. 411.” Alsdorf v. Reed, 45 Ohio session when service was made. Als St. 653." drich v. Woodcock, 10 N. H.99; Parker Insolvency of the Principal Defendv. Parker, 2 Hill Eq. (S. Car.) 35; ant.—The levy of an attachment on Lovless v'. Hlodges, 44 Ga. 647; Stevens mesne process constitutes a valid lien, 7. Dillman. $6 Ill. 233.
which is not to be impaired by a proNicholSON, C. J.: “If the service ceeding in insolvency, unless the inof garnishment acts as satisfaction of solvent or bankrupt law expressly dethe defendant's debt, as in case of direct clares such lien dissolved. Thomas v. levy of execution, the creditor has no Brown, 10 Atl. Rep. (Md.) 713. other indemnity; he can look only to 2. No Specific Lien. Wade on Attach. the responsibility of the garnishee, 325; Bigelow v. Andress, 31 III. 333; even if the garnishee fails to make McGarry v. Lewis Coal Co.,93 Mo. 237; proper return of the property of the s. C., 3 Am. St. Rep. 522; Bank of Mo. v. debtor. But as the garnishee is simply Bredow, 31 Mo. 523; Bailey v. Ross, 20 an agent for the custody of the debtor's N. 11. 302; McCampbell v. Denham, effects, upon his default, the creditor 72 Iowa 494. can either waive his right to proceed “It may be less satisfactory to the against the garnishee, and proceed by plaintiff, for the reason that, instead of alias execution against the garnishee, the specific lien, the responsibility of and then resort to his judgment against the garnishee is substituted.” Wade on his debtor for any unsatisfied balance. Attach. 325; Bigelow v. Andress, 31 This is the necessary result of the legal Ill. 333. fact that the service of the garnishment Under the law applicable to attachdoes no more than vest in the garnishee ment, it is the levy of the officer a special title as a custodian for the that creates the lien. . If the plaintiff in court, and divests the title of the debtor garnishment is not satisfied to look to
of the plaintiff, except in case of fraudulent conveyance by the defendant. In such case it gives the plaintiff such a specific lien that he may contest, upon the ground of fraud, the validity of the conveyance by which the garnishee holds the property, the same as in direct seizure in attachnient. To do this, it is not necessary that the plaintiff's claim shall have been conclusively established. 1
The primary purpose of garnishment is to subject claims and demands in favor of the defendant against third persons to the payment of his debts, and this it accomplishes by divesting the defendant of whatever rights he may have against the garnishee at the time of service, and substituting the plaintiff in his stead.2 The latter gets by the process whatever rights the defendant had, and this is all it is intended to secure for him. From the time of service of process upon him, the garnishee becomes accountable to the plaintiff in respect to any liability due from him to the defendant, and he cannot, except in cases of liability on negotiable paper, escape from such accountability through any subsequent acts of his own or of the defendant.3 The garnishce cannot relieve himself from the obligation thus imposed upon him by payment to the defendant,+ or the delivery to him of property in his possession.5 Against the performance of any obligation in this regard, the garnishment affords him a complete defence as to either the defendant or those claiming through him. Nor can the defendant afterwards dispose of the responsibility of the garnishee, he tion of the demand of the garnishing may apply to the court, or to the judge creditor, and the garnishee cannot disin vacation, and obtain an order upon charge itself by payinent thereof upon the garnishee to deliver the property to a check afterwards presented, though the sheriff into court, or the made and delivered by the defendant court may permit the garnishee to re- before service upon the garnishee. tain the property upon the execution of Kuhn v. Warren Savings Bank, 11 Atl. a bond to plaintiff with security. (This Rep. (Pa.) 440. Nor will the previous provision is given by statute.) Mc- certification of a check thus drawn Garry v. Lewis Coal Co., 93 Mo. 237; change the rule. Bills V. Nat. Park s. C., 3 Am. St. Rep. 522; Bank of Mo. Bank, 89 N. Y. 343; Gibson v. Nat. v. Bredow, 31 Mo. 523.
Park Bank, 98 N. Y. 87. And see Rob1. Rinchey 7. Striler, 28 N. Y. 45; ertson v. Huggins, 10 Lea (Tenn.) 300. $. C., 84 Am. Dec. 324 and note.
3. Martin 7. Foreman, 18 Ark. 249; 2. Hicks v. Gleason, 20 Vt. 139, 143; Cleneary v. Junction R. Co., 26 Ind. Nash v. Gale, 2 Minn. 310; Rushton 375; First Nat. Bank v. Armstrong, 7'. Rowe, 64 Pa. St. 63; Roig i'. Tiny, 101 Ind. 244; Cottrell v. Varnum, 5 103 Pa. St. 115; Baltimore etc. R. Co. Ala. 229; s. C., 39 Am. Dec. 323; Nav. Gallahue's Admr., 12 Gratt. (Va.) tional Commercial Bank v. Miller, 77 664; Campbell z'. Nesbitt, 7 Neb. 300; Ala. 168, 176; White v'. Bird, 20 La. Edwards v. Edwards, 24 Ohio St. 402, Ann. 188; s. c.. 96 Am. Dec. 393; Rob411; Secor v. Witter, 39 Ohio St. 218- erts v. Lydecker, 9 Cal. 262; Bethel v. 232; Ex parte Joselyne, L. R., 8 Ch. Judge of Superior Ct., 57 Mich. 379. Div. 327; Chatterton v. Watney, L. R., 4. Johann v. Rufener, 32 Wis. 195; 17 Ch. Div. 259.
Arnold v. Linaweaver, 3 Head (Tenn.) The service of process upon a bank 51; Hughes v. Monty, 24 Iowa 499. having on deposit funds of the defend- 5. Loyless v. Hodges, 44 Ga. 647; ant, effects an appropriation by opera- Stevens ::.. Dillman, 86 III. 233. tion of law of the whole fund in the 6. Stiles V. Davis, i Black (U. S.) hands of the garnishee to the satisfac- 101; Walcott v. Keith, 22 N. H. 196.
the property to the prejudice of the rights of the garnishing creditor) Where there are several garnishments of the same person, and against property of the same defendant, they will take precedence according to the priority of service upon the garnishee.
But until the garnishee's liability is discharged by satisfaction of a valid judgment against him in the garnishment proceeding, the rights of the defendant to enforce his claim are suspended only, not extinguished, and for the purpose of making demand or obtaining security by attachment or otherwise, they remain unimpaired, though in subordination to the plaintiff's rights in the premises.3 Neither will the proceeding interfere with the execution of any contract previously existing between the parties, except as above indicated, 4 nor prevent them engaging in any new transaction.5
Whether, after service of process upon one as garnishee, the property thus attached in his hands is subject to seizure under process against the defendant, and if so, what effect such seizure will have upon the rights and liabilities of the parties, the courts are not agreed. It was held, in an early case in Massachusetts, which has been followed by later decisions of the same court, that property thus situated is liable to seizure on attachment against the defendant, but that the officer into whose custody the property may come will hold the same subject to the right of the garnishee to have satisfaction, out of the proceeds thereof, for any judgment that may be rendered against him in the garnishment proceeding & In other States, it is held that, no lien being acquired by garnishment, an attachment by seizure of the prop
1. Hacker v. Stevens, 4 McLean held that a creditor subsequently at(U.S.) 535
taching, but before the money was paid 2. Talbot 7. Harding, 10 Mo. 350; over, was not entitled to any claim on Johann v. Rufener, 32 Wis. 195; Blais- the fund. Rudd v. Paine, 2 Cranch dell v. Ladd, 14 N. II. 129; Caperton (C. C.) 9. ?'. McCorkle, 5 Gratt. (Va.) 177; Ar- An attachment by seizure of the ledge v. White, 1 Head (Tenn.) 241; property in possession of the garnishee McCombs v. Iloward, 18 Ohio St. 422; will be entitled to priority over a garThe Olivia A. Carrigan, 7 Fed. Rep. nishments ubsequently served, though
the process issued before the attachA creditor's right to priority will not ment writ. English v. King, io Heisk. be affected by a subsequent garnish- (Tenn.) 666; Pritchard v. Toole, 53 ment of the same debtor in favor of the Mo. 356. United States. Beaston v. Farmers' 3. Hicks v. Gleason, 20 Vt. 139; Bank, 12 Pet. (U. S.) 102, 135.
Smith v. Clinton Bridge Co., 13 Ill. Satisfaction of a prior garnishment App. 572, 580. by the garnishee, before judgment in 4. Baugh v. Kirkpatrick, 54 Pa. St. such proceeding, will be no defence to 84; Aldrich v. Woodcock, 10 N. II. 99, existing attachments subsequent gar- 102; Crownover v. Bamburg, 2 Ill. App. nishing creditors. Brandon Iron Co. 162. 7'. Gleason, 24 Vt. 228; McCobb z'. 5. Victor Hartford Fire Ins. Tyler, 2 Cranch (C. C.) 199.
Co., 33 Iowa 210, 212. But where the defendant directed the 6. Burlingame v. Bell, 16 Mass. 318; garnishee to pay his debt to an attach- Swett v'. Brown, 5 Pick. (Mass.) 178; ing creditor, and he agreed to do so, Platt v'. Brown, 16 Pick. (Mass.) 553. 8 C. of L.-76