DIVISION I.-NATURE AND GROUNDS

1849. When authorized

"Any creditor shall be entitled to proceed by garnishment in the district court of the proper county against any person (excepting a municipal corporation) who shall be indebted to, or have any property, real or personal, in his possession, or under his control belonging to such creditor's debtor, in the cases, upon the conditions, and in the manner hereinafter described." 24

Where a defendant in garnishment proceeding has property in county, subject to execution, sufficient to satisfy plaintiff's demand, a garnishment proceeding is unauthorized.25

§ 1850. Nature and purpose

Garnishment is attachment in the hands of a third person, and thereby is a species of seizure by notice.26 It is a statutory remedy, and no effects in the hands of a garnishee can be reached thereby unless the statute so provides.27 Such proceedings do not lie to enforce pre-existing equities or liens in favor of the plaintiff and against the intended garnishee or some third person who may file an interplea in the case, claiming the attached property, money, or credits.28

Though one judgment may be set off against another in a proper proceeding therefor, if the judgments are in different courts, plaintiff may resort to garnishment proceedings to satisfy a judgment obtained by him.29

§ 1851. After return of execution

"After the issuing or return of an execution against property of a judgment debtor, or of any one of several debtors in the same judgment, where it is made to appear by affidavit, or otherwise, to

24 Rev. Laws 1910, § 4822; Brenneke v. Duigenan, 49 P. 687, 6 Kan. App. 229.

Garnishment process will issue before judgment, in an action on a contract not sounding in damages. Wallace v. Duke, 44 Okl. 124, 142 P. 308.

25 Scott v. Waples-Painter Co. (Okl.) 176 P. 754.

26 Beamer v. Winter, 21 P. 1078, 41 Kan. 596.

27 Missouri, K. & T. Ry. Co. v. Houseley, 132 P. 330, 37 Okl, 326.

28 Johnson v. Brant, 17 P. 794, 38 Kan. 754.

29 Hillis v. First Nat. Bank, 38 P. 565, 54 Kan. 421.

the satisfaction of the judge, that there is reason to believe that any person or corporation has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place within the county in which such person or corporation may be served with the order to answer, and answer the same. The judge may, also, in his discretion, require notice of such proceeding to be given to any party in the action, in such manner as may seem to him proper." 30

DIVISION II-PERSONS AND PROPERTY SUBJECT

§ 1852. Nonliability of garnishee-Judgment

"No judgment shall be rendered upon a liability of the garnishee arising:

"First. By reason of his having drawn, accepted, made, indorsed or guaranteed any negotiable bill, draft, note, or other security.

"Second. By reason of any money or other thing received or collected by him as sheriff or other officer, by force of an execution or other legal process in favor of the defendant.

"Third. By reason of any money in his hands as a public officer, or for which he is accountable to the defendant merely as such offi

cer.

"Fourth. By reason of any money or other thing owing from him to the defendant, unless before judgment against the defendant it shall become due absolutely and without depending on any future emergency.

"Judgment may be given for any money or other thing owing, although it has not become payable, in which case the garnishee shall not be required to pay or deliver it before the time appointed by the contract."

"31

Under the foregoing statute a check or draft cannot be made the subject of garnishment.32

30 Rev. Laws 1910, § 5195.

31 Rev. Laws 1910, § 4836.

32 First State Bank of Addington v. Lattimer, 48 Okl. 104, 149 P. 1099.

(1718)

§ 1853. Exemption from garnishment

On grounds of public policy, a county is exempt from garnishment, and this exemption extends to equitable garnishment.33 Cities are also exempt. The United States and the several states, together with their officers and agents, are also exempt.35

34

§ 1854. Contractual interest-Judgments-Plaintiff

The liability of an insurer to an insured for indemnity against liability for personal injuries is subject to garnishment.36 Money due a beneficiary under a life insurance certificate of a fraternal association cannot be garnished until after it is paid over to the beneficiary.37

The consideration of a separation agreement whereby a wife releases her claim on her husband's property and to his support is not exempt from garnishment as being "alimony," which is an allowance made by order of court.38

Payments due a beneficiary are subject to garnishment in the hands of an executor or administrator after an order of final distribution. Money due on the completion of a contract cannot be subject to garnishment until the work is completed.40

39

Where the buyer agrees to pay the price to a third person who claims a lien under a chattel mortgage, the purchase money while in the buyer's hands is not subject to garnishment by another creditor of the seller, though the chattel mortgage is not in fact a lien

33 Clark v. Board of Com'rs of Osage County, 62 Okl. 7, 161 P. 791, L. R. A. 1917B, 1269.

84 First Nat. Bank v. City of Ottawa, 23 P. 485, 43 Kan. 294; Switzer v. City of Wellington, 19 P. 620, 40 Kan. 250, 10 Am. St. Rep. 196.

35 Manwell v. Grimes, 48 Okl. 72, 149 P. 1182.

36 Maryland Casualty Co. v. Peppard, 53 Okl. 515, 157 P. 106, L. R. A. 1916E, 597.

87 State v. Collins (Okl.) 174 P. 568, 6 A. L. R. 603.

38 Farmers' & Merchants' Bank v. Dondelinger, 103 Kan. 444, 175 P. 109. 39 Sherman v. Havens, 146 P. 1030, 94 Kan. 654, Ann. Cas. 1917B, 394. 40 Where a loan is made with which to erect a building on land, a portion of which is to be paid out as the work progresses, and the remainder after its completion, and there is an assignment of the fund by the borrower to a third person, who is to superintend the construction of the building and the application of the fund, no part of such fund is subject to garnishment for the ordinary debts of the borrower until the building is completed and paid for. Rock Island Lumber & Mfg. Co. v. Equitable Trust & Investment Co., 37 P. 983, 54 Kan. 124.

upon the property; but the purchase money will be applied as agreed.41

A mortgagee of cotton, having given the mortgagor authority to sell it and deposit the proceeds in a bank, waived the lien of a mortgage which did not attach to the proceeds of the cotton, which thereupon became subject to garnishment at the instance of a creditor of the mortgagor.*2

43

Garnishment against a judgment debtor will lie in favor of a creditor holding a judgment against the judgment creditor of such debtor which has been recovered in same court. Where a judgment in another state is satisfied without the debt having been fully paid, under an agreement to pay the balance, the remaining obligation is a contract debt subject to garnishment.**

A plaintiff can neither summon nor charge himself as garnishee." 1855. Possession and ownership

Where an insolvent oil and gas company leaves its tools, etc., and abandons work, the lessor, who had not declared a forfeiture of the lease, is in possession, for the purposes of garnishment in an action by the lessee's creditors, interpleaders, claiming liens on property.46

Where the agent of a lottery company receives a check or draft from the company, the proceeds of which are intended to be applied to the payment of one of the certificate holders of the company, but which check or draft is deposited in the bank in the name of and to the credit of the agent, the certificate holder to whom the money was intended to be paid is not the owner of, and has no more claim upon, the money or interest therein than any other certificate holder connected with the company, and the money remains

41 Mason v. Sanders, 131 P. 562, 89 Kan. 300.

42 Carr v. Brawley, 125 P. 1131, 34 Okl. 500, 43 L. R. A. (N. S.) 302. 43 Priboth v. Chism, 62 Okl. 300, 162 P. 1103.

44 Sutton v. Heinzle, 115 P. 560, 84 Kan. 756, 34 L. R. A. (N. S.) 238, rehearing denied 116 P. 614, 85 Kan. 332, 34 L. R. A. (N. S.) 239.

45 Under Gen. St. 1897, c. 95, § 238, providing that proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant, and all the provisions for enforcing judg ments shall be applicable thereto, plaintiff in an action can neither summon nor charge himself as garnishee therein. First Nat. Bank v. Elliott, 64 P. 623, 62 Kan. 764, 55 L. R. A. 353.

46 Hamilton-Collinson Hardware Co. v. Arkansas City Oil & Gas Co., 102 Kan. 144, 169 P. 190.

the money of the company and subject to garnishment by one holding a claim against the company.*7

§ 1856. Assignment

47

A garnishment only reaches the property which actually belongs to the debtor, and does not lawfully reach that which the debtor has already assigned in good faith to other creditors.48

Where the mortgagor of chattel sold it, the sales money to be paid to the mortgagee, and before the money was paid it was garnished by a creditor of the mortgagor, the money, being assigned in good faith to the mortgagee, was not subject to the garnishment.** An assignee of the proceeds of a contract due and to become due for furnishing materials and labor to a building contractor is valid as against a garnishment of such proceeds in the contractor's hands.50

§ 1857. Partnership

An indebtedness due to a copartnership cannot be garnished in the hands of the debtor to pay the separate debt of one of the partners.51

Defendant's interest in a debt owing to him and another, but not as partners, is subject to garnishment.52

DIVISION III.-PROCEDURE

§ 1858. Pleadings-Proceedings-Affidavit and bond-Interroga

tories-Forms

No pleadings are necessary in garnishment proceedings, other than plaintiff's affidavit and the garnishee's answer.58

"Either at the time of the issuing of the summons, or at any time thereafter, before final judgment, in any action to recover damages. founded upon contract, express or implied, or upon judgment or decree, or at any time after the issuing, in case of an execution

47 Fidelity Funding Co. v. Vaughn, 90 P. 34, 18 Okl. 13, 10 L. R. A. (N. S.) 1123.

48 Rich v. Roberts, 172 P. 996, 103 Kan. 116.

49 Eggers v. Ross, 103 Kan. 812, 176 P. 655.

50 Hall v. Kansas City Terra Cotta Co., 154 P. 210, 97 Kan. 103, L. R. A. 1916D, 361, Ann. Cas. 1918D, 605.

51 Trickett v. Moore, 10 P. 147, 34 Kan. 755.

52 Perry v. Blatch, 43 P. 989, 2 Kan. App. 522.

58 Reese v. Platt, 44 P. 31, 4 Kan. App. 801, judgment reversed on rehearing 46 P. 990, 4 Kan. App. 801.