issues are regularly formed in the attachment proceedings, where the question is one of fact and tried with the main action. Sometimes the defect can only be reached by a rule on the plaintiff to show cause why the writ should not be dissolved. A court of equity has jurisdiction to set aside an attachment on the ground of fraud in making the affidavit.3

Whatever the mode of attack may be, it must be made before final judgment in the action under the practice. usually prevailing in the different states, for the reason that the attachment has, upon the final judgment being rendered in favor of the plaintiff, served its purposes. But where a separate issue has been made, pending the main action, upon the facts alleged in support of the attachment, a judgment in favor of the plaintiff, in the action,

1 Prunk v. Williams, 28 Ind. 523; Dunn v. Crocker, 22 Ind. 324. Adair v. Stone, 81 Ala. 113; 1 Sou. Rep. 768.

3 Byles v. Rowe, 64 Mich. 522; 31 N. W. Rep. 463.

♦ Reed v. Maben, 21 Neb. 696; 33 N. W. Rep. 252.

"Attachment is a proceeding ancillary to the main action, in which it is allowed. If the main action is attacked and overthrown, the attachment goes with it. On the other hand, it often happens that, while the cause of action is lawful and just, the ground of attachment is mistaken or false; hence judgment must be rendered for the plaintiff on the merits, but the attachment must be dissolved. As a matter of practice, however, if no ground of attachment exists, or the order has been issued without the proper affidavit or bond as required by statute, the attention of the court must be called thereto in some appropriate manner, and the question of sufficiency settled before the final judgment in the case. The sole object of an attachment is that the property of the debtor may be taken into the custody of law and preserved, so that it may be applied to the payment of the judgment of the plaintiff when obtained. It therefore follows that, when this proceeding has answered its purpose, it would be idle to go back and inquire into its sufficiency. Under the system of practice which formerly prevailed in some of the states, where actions were commenced by attachment, it has been held that when, upon the final trial, it appeared from the pleadings or evidence in the case, it was one not proper to be commenced by attachment, the cause would be dismissed. See Elliott r. Jackson, 3 Wis. 649. "But this rule is not applicable to our present system of practice, where, as above stated, the order of attachment is an ancillary proceeding." Reed v. Maben, 21 Neb. 696; 33 N. W. Rep. 252, 253.

does not deprive the defendant of the right to a determination of the issues as to the attachment thereafter.1

In some of the states it is provided by statute that a . motion to set aside an attachment must be made within a certain time; for example, before the expiration of the time to answer. If so the motion must be made within the time or it is waived. Proceedings in attachment can not be attacked, collaterally, for mere irregularities.3

11. Presumptions in favor of jurisdiction.-There are authorities holding that attachment proceedings are special, that the jurisdiction of the court must therefore appear affirmatively, and that no presumptions in favor of such jurisdiction can be indulged. But the clear weight of authority and reason is to the contrary, the better rule being that in the absence of any showing in the record to the contrary, it will be presumed that the steps necessary to vest the court with jurisdiction were taken and that the court had authority to act.5

75. GARNISHMENT.-The principles affecting jurisdiction in garnishment proceedings are very similar to those applicable to proceedings in attachment, which have been treated of in the last preceding section, and the objects of the two are very similar. The attachment is to seize and hold the property of the defendant, subject to execution, for the satisfaction of the plaintiff's judgment when recovered. The object of the garnishment proceeding is to compel one indebted to the defendant, or having property of his, to withhold the same and pay it into court or deliver it to the proper officer to be applied to the satisfaction of the judgment when recovered.?

1

The most material distinction between the two, as re

Ray v. Gore, 41 N. W. Rep. 329; Calvert Lith. Co. v. K. & K. Medi

cal Ass'n, 61 Mich. 336; 28 N. W. Rep. 111.

3

2 Vaughn v. Dawes, 7 Mont. 360; 17 Pac. Rep. 114.

Morey v. Hoyt, 62 Conn. 542; 26 Atl. Rep. 127.

'Oberfelder v. Kavanaugh, 32 N. W. Rep. 295.

5

Ante, sec. 25; Veatch v. Chenoweth, 46 Kan. 743; 30 Pac. Rep. 118; Beebee v. Morrell, 76 Mich. 114; 42 N. W. Rep. 1119.

6 Ante, sec. 74.

'Benton v. Snyder, 22 Minn. 247.

spects the subject of jurisdiction, is that in the former a seizure of the property is authorized, and is sometimes ab.solutely necessary to give the court jurisdiction,' while in the latter the seizure of the property is neither necessary nor authorized.2

3

5

The garnishment proceeding is like the attachment in that it is ancillary to the main action, that notice to the defendant is necesary to uphold it, and that a valid judgment in the main action, authorizing the application of the property in the hands of the garnishee to the satisfaction of the plaintiff's claim must be recovered; but not necessarily a personal judgment against the defendant. The only jurisdiction obtained by the court, where the defendant is a non-resident, may rest entirely upon the proceeding in garnishment, and constructive notice, which will not authorize a personal judgment, but only the disposition of the property or fund in the hands of the garnishee. In such case the proceeding is essentially one in rem? And in some of the states, the validity of the garnishee proceeding depends upon a valid proceeding in attachment under some circumstances. 8

A real contest may arise between the plaintiff and the garnishee as to the indebtedness of the latter to the defendant, or as to the ownership of the defendant of the property sought, in his hands, to be applied to the plaintiff's

1 Ante, sec. 74.

2 Wade Attach., sec. 325.

3 Wade Attach., sec. 399; Benton v. Snyder, 22 Minn. 247; Frisk v. Reigelman, 75 Wis. 499; 43 N. W. Rep. 1117; Streissguth v. Reigelman, 75 Wis. 212; 43 N. W. Rep. 1116.

Wade Attach., sec. 399; Newman v. Manning, 89 Ind. 422; Martin v. Central Vermont R. Co., 3 N. Y. Supl. 82; Beaupre v. Keefe, 79 Wis. 446; 48 N. W. Rep. 596; Debbs v. Dalton, 34 N. E. Rep. 236.

5 Wade Attach., sec. 399; Waples Attach. 345; Wilder r. Weatherhead, 32 Vt. 765; Melloy v. Burtis, 124 Pa. St. 161; 16 Atl. Rep. 747; Frisk v. Reigelman, 75 Wis. 499; 43 N. W. Rep. 1117; Streissguth r. Reigelman, 75 Wis. 212; 43 N. W. Rep. 1116; Debbs v. Dalton, 34 N. E. Rep. 236.

6 Waples Attach. 345.

▾ Ante, sec. 74; Waples Attach. 345.

8 Streissguth v. Reigelman, 75 Wis. 212; 43 N. W. Rep. 1116; Scurlock e. Gulf C. & S. F. Ry. Co., 77 Tex. 478; 14 S. W. Rep. 148; Donald v. Nelson, 10 Sou. Rep. 317.

claim. And as to these questions, the controversy assumes the form of an independent suit, and is so treated for certain purposes. But for all that, the action against the defendant and the recovery of a judgment against him, or for the application of the property, are necessary to uphold the proceeding in garnishment, or any decree that may be rendered against him. The proceeding is entirely statutory.2

Usually an affidavit in addition to the affidavit for attachment is required. The statutes of the different states differ as to what these affidavits shall contain. The stat

ute must be complied with.3

It will be unnecessary in this connection to consider the question as to what will amount to a sufficient affidavit. What has been said with reference to the affidavit for attachment will suffice for the present purpose for the reason that the general principles affecting the two are so nearly the same as to render a separate discussion of them superfluous. But, for convenience of reference, some of the authorities bearing upon the sufficiency of affidavits for garnishment have been gathered in the foot note.*

The same may be said with reference to the bond or undertaking where an additional bond is required by the statute. Although, generally, the garnishoe is not interested in the bond, and a failure to comply with the statute respecting it can not be objected to by him for the reason that he is usually a disinterested party to the controversy, and does not need the protection of the bond.5

1 Wade Attach., sec. 332; Middleton Paper Co. v. Rock River Paper Co., 19 Fed. Rep. 252.

2 Wade Attach., sec. 333.

3 Wade Attach., sec. 356; Steen v. Norton, 45 Wis. 412; Wells v. American Ex. Co., 55 Wis. 23; 11 N. W. Rep. 537.

✦ Wade Attach., sec. 356; Steen v. Norton, 45 Wis. 412; Wells v. American Ex. Co., 55 Wis. 23; 11 N. W. Rep. 537; Ettelsohn v. Fireman's Fund Ins. Co., 31 N. W. Rep. 201; Scurlock v. Gulf C. & S. F. Ry. Co., 77 Tex. 478; 14 S. W. Rep. 148; Connor v. Third National Bank, 90 Mich. 328; 51 N. W. Rep. 523; Orton v. Noonan, 27 Wis. 572; Everdell v. The Sheboygan, etc., R. Co., 41 Wis. 395; Davis v. Wilson, 3 N. W. Rep. 52; Prince v. Heenan, 5 Minn. 347.

5 Wade Attach., sec. 356.

As to the necessity for such notice to the defendant, in the main action, as will give the court jurisdiction, and thereby uphold the auxiliary proceeding in garnishment, the rules and principles are the same as in attachment.' And in lieu of the seizure of the property in attachment, notice in the form provided by statute must be given to the garnishee.* This notice is in the nature of an actual levy upon the property, in that the garnishee is bound, upon receiving it, to hold the property, or the amount due from him to the defendant, subject to any judgment that the plaintiff may recover in the main action.3

From the time notice is given to the garnishee the property or chose in action is in the custody of the law, the same, in legal effect, as if an actual levy had been made thereon. The notice given to the garnishee may also be in the form of a summons to him to appear and answer as to the garnishment proceeding. .As to the form and sufficiency of the notice, see the authorities cited below.* Also as to the time and manner of its

service.

The doctrine of waiver of notice on the part of the garnishee differs from the rule on the subject in attachment proceedings, growing out of the fact that the garnishee is not, as a rule, a real party in interest who can waive the notice.

1 Ante, sec. 74. 2 Padden v. Moore, 58 Ia. 703; 12 N. W. Rep. 724. 3 Waples Attach. 341; Wilder v. Weatherhead, 32 Vt. 765; Beamer v. Winter, 41 Kan. 596; 21 Pac. Rep. 1078.

Wade Attach., sec. 357; Padden v. Moore, 58 Ia. 703; 12 N. W. Rep. 724; Mathews v. Smith, 13 Neb. 178; 12 N. W. Rep. 821; Bell v. Wood, 87 Ky. 56; 7 S. W. Rep. 550; Warner v. Fourth Nat'l Bank, 115 N. Y. 251; 22 N. E. Rep. 172; Mangold v. Dooley, 89 Mo. 111; 1 S. W. Rep. 126; Acme Lumber Co. v. Francis Vandergrift Shoe Co., 11 Sou. Rep. 657; Middleton Paper Co. v. Rock River Paper Co., 19 Fed. Rep. 252.

5 Wade Attach., secs. 359, 360; Gates v. Tusten, 89 Mo. 13; 14 S. W. Rep. 827; Hayden v. National Bank, 29 N. E. Rep. 143; First Nat'l Bank v. Leppel, 9 Colo. 594; 13 Pac. Rep. 776; Nelson v. Sanborn, 64 N. H. 310; 9 Atl. Rep. 721; Harrell v. Mexico Cattle Co., 73 Tex. 612; 11 S.W. Rep. 863; Tweedy v. Bogart, 56 Conn. 419; 15 Atl. Rep. 374; Fuller v. Foote, 56 Conn. 341; 15 Atl. Rep. 760; Case v. Noys, 16 Ore. 539; 21 Pac. Rep. 46; Axman v. Dueker, 45 Kan. 179; 26 Pac. Rep. 946; Gow v. Marshall, 90 Cal. 565; 27 Pac. Rep. 422.