Reed v. Fletcher. as defendants therein. Upon the trial of the cause the court found in part for the plaintiff, bank, and in part for the substituted defendants. The cause was brought to this court on error by the bank, and also by Clement Bane & Co., on the part of the defendants. This court, in its final opinion affirming so much of the judgment of the district court as was favorable to the plaintiff, bank, say: "It appears from the record that summonses in garnishment were served on the plaintiff on the part of the several substituted defendants in the case at bar. These proceedings constituted as many suits at law against the plaintiff, citing Drake on Att., Sec. 452. These suits are still pending, so far as appears, and I know of no reason why the questions in which the rights of the parties are involved may not be there fully litigated and settled." Blue Valley Bank v. Bane, 20 Neb., 294. The garnishment proceedings of the plaintiff, Reed, Jones & Co., in the case at bar, it appears from the record, are no longer pending, there having been a final judgment rendered therein on the 24th day of September, 1884. This judgment was probably erroneous, and would have been reversed upon proper proceedings for that purpose. But the court had jurisdiction of the parties and of the subject-matter, the judgment is for the payment of money. It is probably not sustained by the evidence in the case, but that is not a sufficient reason why, in this proceeding, it may be treated as void. The like proceeding in favor of the plaintiffs, Lockwood, Englehart & Co., has never been terminated by judgment or final order, but is still pending in the district court. The first question to be considered at this point arises upon the consideration of the status of the goods in the possession of the Blue Valley Bank, after the service of the orders of garnishment of the plaintiffs upon the bank; and secondly, whether Fletcher, the constable, obtained Reed v. Fletcher. any legal right to the custody of the goods by virtue of the levy of the executions thereon. Drake, in his valuable work on attachments, at section 251, sixth ed., says: "So it has been held that garnishment has the effect to place the property in the garnishee's hands in the custody of the law, and that an officer has no right after the garnishment to take the property from the garnishee." To this he cites three cases, Scolefield v. Bradlee, 4 Martin, 252 (8 N. S.); Brasheary v. West, 7 Peters, 608; and Dennistun v. New York, C. & S. F. Co., 6 La. Ann., 782. The two first fully sustain the text; the third, being out of the library, has not been examined. In Massachusetts the holding is, that although garnishment is an attachment of the effects in the garnishee's hands, yet they may be attached and taken into the possession of an officer subject to the lien of the creditor who affected the garnishment. To this Drake cites the cases of Burlingame v. Bell, 16 Mass., 318; and Swett v. Brown, 5 Pick., 178. The plaintiffs undoubtedly acquired equitable liens on the goods by virtue of their garnishment proceedings against the bank, and if the defendant, Fletcher, had the right to take the goods on the executions in favor of Shakman, he could only take them subject to the rights of the plaintiffs. Considerable stress is laid by counsel for defendants, throughout the case, on the fact that the plaintiffs procured no orders from the court upon the garnishees as to the disposition of the goods. From an examination of the statute,I do not find that such orders are obtainable in such cases until after final judgment against the principal debtor. Section 226 of the code provides that, "Final judgment shall not be rendered against the garnishee until the action against the defendant has been determined; and if in such Reed v. Fletcher. action judgment be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in attachment, and the garnishee shall deliver up all the property, money, and credits of the defendant in his possession, and pay all the moneys from him due, as the court may order, the garnishee shall be discharged and the costs of the proceedings against him shall be paid out of the property and moneys so surrendered, or as the court may think right and proper." It appears from the record in the case of Louis Tessier v. Reed, Jones & Co., in error, on the files of this court, that final judgment was rendered in the district court in the case of Reed, Jones & Co. v. Tessier, in favor of the plaintiffs, on the 5th day of March, 1884. In the case of Lockwood, Englehart & Co. v. Tessier, final judgment was rendered on the 27th day of June, 1884. Now it appears from the record that the goods were levied on and seized by the defendant, Fletcher, on the 4th day of June, 1883, long before the rendition of judgment in favor of either of the plaintiffs against Tessier, and before, under the above provisions of statute, any order could have been made by the district court for the disposition of the said goods. It must be held, therefore, that neither the defendant, Louis Shakman, as plaintiff in the five executions against Tessier, nor Joseph C. Fletcher, the constable who served the same by the seizure and conversion of the goods, obtained any right or title to the money received for said goods and now in the possession of said constable, as against the plaintiffs, unless the plaintiffs have lost their liens by laches. Have they done so? Neither law nor equity requires that to be done which is useless and manfestly futile. Before the plaintiffs could, in the ordinary course of practice in the district court, bring their several causes against Tessier to trial and judgment, and so be in Reed v. Fletcher. a position to proceed against the garnishee or the effects in its hands, the defendant, Fletcher, had, by color of his office and the executions in his hands, taken said effects out of the hands of the garnishee and converted them into money. But counsel insist that, notwithstanding this, the plaintiffs should have pursued the garnishee and compelled it to account to them for the goods which Fletcher, under the orders of Shakman, had taken from its possession and converted. Whatever weight might be accorded to this position, if by Tessier, it cannot be considered when urged by Fletcher and Shakman, or either of them. As we have seen, if they had any right to take the goods at all, they must have taken them subject to the liens of the plaintiffs. And having taken them under a claim of superior right, they cannot now be heard to urge the right of the plaintiffs to still demand the goods or their value from the garnishee, as defense to their claim on the proceeds of the goods. Again, it appears from the evidence that in the month of October, 1883, long before either of the plaintiffs obtained judgment on their claims against Tessier, the garnishee ceased to do business, and withdrew all its assets from the state, so that no proceedings of the kind contemplated would have been practicable or possibly effective in results. As to the garnishee, Mrs. Ada C. Fenton, from a view of the whole case it is manifest that she never had possession or control of the goods, and consequently that her name never should have been used in these proceedings. I come to the conclusion, therefore, that the plaintiffs did not lose their lien upon the goods or right to their proceeds by laches. Having already extended this opinion to an unusual and probably unjustifiable length, I do not discuss the other questions raised and discussed by counsel. The case presents many complicated and some doubtful questions, Higginbottom v. Benson. but upon the whole I think that the judgment of the district court is right, and that it violates no principle or practice of law or equity. It is therefore affirmed. THE other judges concur. Judgment AFFIRMED. CHARLES E. HIGGINBOTTOM, APPELLANT, V. WIL- APPELLEES. Mortgage Foreclosure: PARTIES : BONA FIDE PURCHASER: Where, upon the foreclosure of a senior mortgage, the holders APPEAL from the district court of Hamilton county. Tried below before NORVAL, J. Hainer & Kellogg, for appellant, cited: Jones on Mortgages, Secs. 1118, 1128, 1678. Barton v. Land Co., 27 Kan., 634. Parsons v. Moses, 16 Iowa, 440. Morgan v. Walbridge, 56 Vt., 405. Smoot v. Smoot, 12 Lea, 274. French v. Grenet, 57 Tex., 273. Bright v. Boyd, Story, 478. Putnam v. Ritchie, 6 Paige, 390. Renard v. Brown, 7 Neb., 449. Miller v. Finn, 1 Neb., 254. J. H. Smith, for appellees, cited: Wetmore v. Roberts, |