against property, and before the time when it is returnable, the plaintiff or some person in his behalf may file with the clerk an affidavit stating the amount of the plaintiff's claim against the defendant or defendants over and above all offsets, and stating that he verily believes that some person, naming him, is indebted to or has property, real or personal in his possession or under his control belonging to the defendant (or either or any of the defendants) in the action or execution, naming him; and that such defendant has not property liable to execution sufficient to satisfy the plaintiff's demand, and that the indebtedness or property mentioned in such affidavit is, to the best of the knowledge and belief of the person making such affidavit, not by law exempt from seizure or sale upon execution. Any number of garnishees may be embraced in the same affidavit and the summons hereinafter provided for; but if a joint liability be claimed against any, it shall be so stated in such affidavit, and the garnishee named as jointly liable shall be deemed jointly proceeded against; otherwise the several garnishees shall be deemed severally proceeded against: Provided, that the order of garnishment shall not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more sufficient sureties, approved by the clerk and filed in his office, in a sum not less than double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of such garnishment together with a reasonable attorney's fee, if the order be wrongfully obtained; but no undertaking shall be required where the party or parties defendant are all non-residents of the state or a foreign corporation." 54

A garnishment affidavit without the bond required by statute does not confer jurisdiction to issue a garnishment summons.55

"When an execution shall have been returned unsatisfied, the judgment creditor may file an affidavit of himself, his agent or attorney, in the office of the clerk, setting forth that he has good reasons to, and does, believe that any person or corporation, to be named, has property of the judgment debtor, or is indebted to him,

54 Rev. Laws 1910, § 4823.

55 House v. Scanlan, 127 P. 481, 34 Okl. 796; Charles P. Kellogg & Co. v. Hazlett, 43 P. 987, 2 Kan. App. 525.

and thereupon the clerk shall issue an order, requiring such person or corporation to answer, on or before a day to be named in the order, not less than ten nor more than twenty days from the date of issuing the same, all interrogatories that may be propounded by the judgment creditor, concerning such indebtedness or property.” se

"The judgment creditor, or his attorney, shall prepare interrogatories concerning such indebtedness or property, a copy of which shall be served on the garnishee at the time of the service of the order, or within three days thereafter. And the garnishee shall, on or before the day required in the order, file with the clerk full and true answers to all such interrogatories, verified by his affidavit. "All subsequent proceedings against the garnishee shall be the same as in cases of attachment, as far as applicable." 57

No bond need be given in a garnishment proceeding instituted in aid of judgment.

58

Inasmuch as the statute does not require that an affidavit for a writ of garnishment, where an execution against the principal debtor has been returned unsatisfied, shall aver that the execution was returned unsatisfied, the absence of such an averment from the affidavit is immaterial. Likewise, when the affidavit does not state that the defendant has not sufficient property liable to execution, and the defendant voluntarily appears and gives bond releasing the property attached, he cannot question validity of affidavit.60

59

"The judgment creditor, or his attorney, shall prepare interrogatories concerning such indebtedness or property, a copy of which shall be served on the garnishee at the time of the service of the order, or within three days thereafter. And the garnishee shall, on or before the day required in the order, file with the clerk full and true answers to all such interrogatories, verified by his affidavit."

99 61

"All subsequent proceedings against the garnishee shall be the same as in cases of attachment, as far as applicable." 62

50 Rev. Laws 1910, § 5211.

57 Rev. Laws 1910, §§ 5212, 5213.

58 Mason v. Miller, 54 Okl. 46, 153 P. 187.

59 Walker v. Columbus State Bank, 67 P. 552, 64 Kan. 884. 60 Bennett v. St. Marys Grain Co., 164 P. 259, 100 Kan. 289.

61 Rev. Laws 1910, § 5212.

62 Rev. Laws 1910, § 5213.

(Caption.)

GARNISHMENT AFFIDAVIT

-, being duly sworn, says he is the plaintiff in the above. entitled cause; that the above named defendant,

is justly dol

and truly indebted to the said plaintiff in the sum of lars, over and above all offsets; that he verily believes that is indebted to and has property, real and personal, in his possession and under his control belonging to the above named defendant, - -; and that said defendant has no property liable to execution sufficient to satisfy plaintiff's demands and said indebtedness, and the property herein mentioned is to the best of the knowledge and belief of affiant not exempt by law from seizure and sale upon execution.

Whereas, plaintiff in the above entitled action has commenced an action in the district court of said county against fendant, to recover the sum of

de

dollars, and has filed the necessary affidavit to obtain an order of garnishment against said defendant:

Now, therefore, we,

do hereby undertake to said defendant,

and in the penal sum

of $, that the plaintiff will pay defendant all damages, not exceeding the above amount, which the defendant may sustain by reason of the garnishment in this action, if the order thereof be wrongfully obtained.

Witness our hands, this

day of

19.

(Qualification of sureties.)

§ 1859. Garnishee summons-Forms

"Upon the filing of such affidavit a garnishee summons shall be issued by the clerk and served upon the defendant or his attorney of record, and each of the garnishees, in the manner provided for service of summons, and shall be returned with proof of service in five days. The garnishee summons may be served by the sheriff, or any other person not a party to the action, and shall be substantially in the following form:

66

Court,

County.-A. B., Plaintiff, v. C. D., Defendant, E. F., Garnishee.-The state of Oklahoma to Said Garnishee: You are hereby summoned, pursuant to the affidavit filed herein, as garnishee of the defendant, C. D., and required on or before date of return day, to answer according to law whether you are indebted to, or have in your possession or under your control, any property, real or personal, belonging to such defendant, and file your answer with the clerk of this court; and in case of your failure so to do you will be liable to further proceedings according to law. Of which the said defendant will also take notice.

"The copy of the order and notice shall be served upon the garnishee as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president or other head of the same, or the secretary, cashier or managing agent thereof." 64

A garnishee summons, not substantially conforming to the statute, is void, and service thereof gives no jurisdiction.5

63 Rev. Laws 1910, § 4824.

64 Rev. Laws 1910, § 4841.

65 State Nat. Bank v. Lowenstein, 52 Okl. 259, 155 P. 1127.

A service not void is not subject to a collateral attack." Under the statutes providing that the garnishee summons shall be served in the manner provided for service of summons, service by delivering a copy thereof to the defendant in person, or by leaving one at his usual place of residence, at any time before the return day, is a good and sufficient service."7

A failure to serve the garnishee summons on the principal defendant is fatal to the court's jurisdiction.68

Before service can be had on a nonresident of the state, by publication, where one is served with attachment and garnishee process, it must appear that the party garnished has property of defendant in his control, or is indebted to him."

69

A judgment against a defendant in garnishment on publication notice, naming another defendant in a different action, is a nullity." An order on defendant's motion, setting aside service by publication on the grounds that the garnishee is not indebted to him, is erroneous, where the question of such indebtedness is pending."1

An appearance and answer by a garnishee waives all defects and irregularities in the writ which do not go to the jurisdiction of the court.72

An appearance by the principal defendant in garnishment proceedings to have his money adjudged exempt is general, and gives the court jurisdiction of both his person and the subject-matter of the garnishment.78

66 Service on a garnishee of a copy of the writ of attachment and notice not to pay over any money in his hands to defendant was attacked by de fendant, and was by the trial court held sufficient to require the garnishee to answer, and the garnishee answered under the order of the court. Such service, not being void, could not be attacked in a collateral proceeding. Axman v. Dueker, 25 P. 582, 45 Kan. 179, judgment affirmed 26 P. 946, 45 Kan. 745.

67 Theison v. Brown, 65 P. 925, 11 Okl. 118; Rev. Laws 1910, § 4711 68 State Nat. Bank v. Lowenstein, 52 Okl. 259, 155 P. 1127.

The principal defendant is a necessary party to a garnishment proceeding. Powell v. First State Bank of Clinton, 56 Okl. 44, 155 P. 500.

69 Searing v. Benton, 21 P. 800, 41 Kan. 758.

70 Missouri, K. & T. Ry. Co. v. Bradshaw, 132 P. 325, 37 Okl. 313.

71 Chambers v. Bane, 136 P. 923, 91 Kan, 88.

72 Phoenix Bridge Co. v. Street, 60 P. 221, 9 Okl. 422.

73 Kansas City, Ft. S. & M. Ry. Co. v. Cunningham, 51 P. 972, 7 Kan. App. 47, judgment reversed Cunningham v. Kansas City, Ft. S. & M. Ry. Co., 56 P. 502, 60 Kan. 268.