applicable thereto; but when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment, the garnishee action shall be dismissed with costs. * * * The court shall render such judgment in all cases as shall be just to all the parties, and properly protect their respective interests, and may adjudge the recovery of any indebtedness, the conveyance, transfer, or delivery to the sheriff, or any officer appointed by the judgment, of any real estate or personal property disclosed or found to be liable to be applied to the plaintiff's demand, or by the judgment pass the title thereto; and may therein, or by its order when proper, direct the manner of making sale and of disposing of the proceeds thereof, or of any money or other thing paid over or delivered to the clerk or officer. The judgment against a garnishee shall acquit and discharge him from all demands by the defendant or his representatives for all money, goods, effects or audits paid, delivered, or accounted for by the garnishee by force of such judgment: Provided, it shall be no defense to proceedings against a garnishee that the debt owing by him to the defendant was not due or unliquidated nor that the indebtedness to mature in the future consists of renewal com missions or annuities not otherwise exempt by law." 92

Where a garnishee answers and plaintiff elects to take issue thereon, the proceeding is an action by plaintiff against the garnishee, and, when the garnishment is not in aid of an execution, no trial can be had of the garnishee action until plaintiff has obtained judg ment in the principal action.93

"The examination of the garnishee may be taken out of court, by deposition, at any time after the filing of the affidavit by him in answer to the garnishee summons before the determination of such garnishee's liability. If the garnishee be a corporation any principal officer thereof may be so examined. Such deposition may be taken before the county judge, or before a notary public, to be designated by the judge of the court in which the action is pending, on application by the plaintiff upon five days' previous notice to the defendant, stating the time and place of such application, or it

92 Rev. Laws 1910, § 4832, as amended by Sess. Laws 1913, p. 232, § 1. 93 Brooks v. Fields, 106 P. 828, 25 Okl. 427.

may be taken without the State, in the same manner provided for taking other depositions. The attendance of the garnishee to be examined may be compelled upon subpoena and the payment of witness fees, if demanded; and such examination shall be subject to the same rules as that of any other witness, but he shall not be compelled to disclose anything not relevant to the controversy. Such examination shall not be compelled in any other county than that in which the party to be examined resides." 94

Where the answers to interrogatories have been duly verified and filed, subsequent proceedings against the garnishee and proceedings in aid of judgment shall be the same, so far as practicable, as in cases of attachment.95

The creditor may show any fact tending to prove that the property in the hands of the garnishee belongs to the debtor.""

Where a garnishee's answer alleges the admitted fact that he is a federal officer, and the claim that he holds, as such, the funds sought is questioned, the burden of proof is on plaintiff to establish the contrary."7

"A garnishee may pay the money owing to the defendant by him to the sheriff having the order of attachment, or into court. He shall be discharged from liability to the defendant for any money so paid, not exceeding the plaintiff's claim. He shall not be subject to costs, beyond those caused by his resistance of the claim against

94 Rev. Laws 1910, § 4833.

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

In an action against a garnishee, the court did not err in sustaining a demurrer to the evidence filed by plaintiff, in the absence of proof that it had obtained judgment against its debtor in the principal action. Levis-Zukoski Mercantile Co. v. Exchange Nat. Bank, 66 P. 638, 63 Kan. 550.

Code Civ. Proc. § 213, provides that, from the time of the service of the summons on the garnishee, he shall stand liable to plaintiff to the amount of property in his possession, and under his control belonging to defendant or in which he is interested, to the extent of his right and interest therein. In a garnishment proceeding there was evidence that the garnishee had shares of stock in his hands, transferred to him by a sale claimed to be fraudulent. There was no evidence tending to show any debt. Held, that the jury could not return a money verdict. Williamson v. Oklahoma Nat. Bank, 56 P. 1064, 7 Okl. 621.

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

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

him; and if he discloses the property in his hands, or the true amount owing by him, and deliver and pay the same, according to the order of the court, he shall be allowed his costs." 98

Where the debtor's interest in a debt owed to him and another, but not as partners, was garnished, and the garnishee paid the amount thereof into court, and all parties in interest appeared, the court should determine the interest of the debtor and hold it subject to the garnishment proceedings.""

§ 1867. Default of garnishee-Judgment-Contempt

"If any garnishee, having been duly summoned, shall fail to file his affidavit as required in the preceding sections, the court may render judgment against him for the amount of the judgment which the plaintiff shall recover against the defendant in the action and for damages and costs, together with the costs of such garnishment. Such garnishee may also be proceeded against as for contempt."1

§ 1868. Judgment

A judgment against a garnishee that he pay money into court, to be applied on a judgment held by plaintiff against the principal defendant, can be set aside only as other judgments are set aside. A judgment rendered on a void garnishee summons in an action

98 Rev. Laws 1910, § 4854.

99 Perry v. Blatch, 43 P. 989, 2 Kan. App. 522. 1 Rev. Laws 1910, § 4829.

2

Under Rev. Laws 1910, § 4829, where a duly summoned garnishee fails to answer in time, the court may render judgment against him for the amount of plaintiff's judgment and for damages and costs, including costs of garnishment, without further proof of the garnishee's liability. State Nat. Bank v. Lowenstein, 52 Okl. 259, 155 P. 1127.

Where after a garnishment served and answer filed the garnishee paid the fund to another claimant, and other garnishee summons were then served by other creditors, and the garnishee answered that he had paid the fund to the claimant, who was then garnished, the claimant should be held as garnishee, and the fund brought into court. Greenwood County Bank v. O. B. Walker Telephone Co., 128 P. 357, 88 Kan. 287.

2 A. J. Harwi Hardware Co. v. Klippert, 74 P. 254, 67 Kan. 743.

Where counsel now appearing did not then represent any of the parties hereto, and trial court's announcement as to trial was not relied upon by defendant or garnishees, court did not err in overruling motion based on such announcement to set aside judgment against them. Arnold v. Burks, 63 Qkl. 273, 164 P. 970.

against a nonresident, who has not been personally served or appeared, is a nullity.

A judgment against a garnishee that he pay money into court, to be applied on a judgment held by plaintiff against the principal defendant, is enforceable like any other money judgment.*

In an action by a plaintiff against a garnishee, plaintiff may recover if he shows a valid judgment against debtor, garnishee summons, answer of garnishee order directing payment into court, a refusal, and liability to debtor by garnishee at time of service of garnishee summons.5

In a civil action against a garnishee, because his answer is not true and satisfactory as to the possession of money alleged to belong to the judgment debtors, in which action a personal judgment for money only is rendered against the garnishee, the jury should be allowed to render a general verdict.

Where justice of the peace orders garnishee to pay money into court, an action by plaintiff to enforce the payment is an independent proceeding, in which the issues are defined by pleadings therein filed."

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

An order was made directing the payment of money by a garnishee into court, and the money was paid to the clerk and by him applied in the satisfaction pro tanto of the judgment. Nearly two months afterwards defendant in the judgment moved to set it aside, and for an order directing the clerk to pay the money to him on the ground that it was exempt. The record did not purport to contain all the proceedings or testimony, or to show that defendant did not have actual notice of the garnishee proceedings while they were pending. Held, that an order overruling defendant's motion will not be reversed though the money was in fact exempt; defendant not having been prompt and vigilant in asserting his rights. Iliff v. Arnott, 3 P. 525, 31 Kan. 672. 4 A. J. Harwi Hardware Co. v. Klippert, 74 P. 254, 67 Kan. 743. 5 Bell-Wayland Co. v. Nixon, 57 Okl. 138, 156 P. 1195.

In an action by A. against B., C. is garnished, and answers that he is indebted to B. on certain conditions to be performed by B.; that on said answer C. was ordered to pay into court the amount found due from B. to A. C. refused to comply with the order. Held that, in an action by A. against C. on said answer and order in garnishment, C. is not estopped by said proceedings from showing that the conditions under which the indebtedness arose had not been complied with, and that he is therefore not indebted to B. Linder v. Murdy, 14 P. 447, 37 Kan. 152.

Shahan v. Tallman, 17 P. 823, 39 Kan. 185. 7 Lamb v. Taylor, 101 Kan. 612, 168 P. 673.

DIVISION IV.-OPERATION AND EFFECT

§ 1869. Liability of garnishee

"From the time of the service of the summons upon the garnishee he shall stand liable to the plaintiff to the amount of the property, moneys, credits and effects in his possession or under his control, belonging to the defendant or in which he shall be interested, to the extent of his right or interest therein, and of all debts due or to become due to the defendant, except such as may be by law exempt from execution. Any property, moneys, credits and effects held by a conveyance or title, void as to the creditors of the defendant, shall be embraced in such liability. In case such moneys, credits and effects in the possession or under the control of the garnishee shall exceed the amount of the plaintiff's claim, the garnishee shall stand liable to the plaintiff only for the amount of the plaintiff's claim as disclosed by the garnishment affidavit, together with such further amount as shall be equal to all costs and damages, which the plaintiff may recover in the action and garnishment proceedings."

The plaintiff can have no greater rights than defendant has as against the garnishee, and, where the garnishee was not in fact indebted to defendant when process was served, the plaintiff can claim nothing from him."

Where no valid judgment was rendered against the principal defendant in garnishment, no judgment could be rendered against his garnishee. 10

§ 1870. Lien-Priority

Plaintiff can never obtain a garnishment lien upon more in the hands of the garnishee than the defendant owns, and, where the property or fund is exempt from judicial process, he cannot obtain a lien upon even that much.11

Garnishment. proceedings bind only such property, money, and credits, not exempt from attachment and garnishment, as belong to defendant, in the possession of the garnishee, or owing by him to defendant, at the time of the service of the process on the garnishee

Rev. Laws 1910, § 4835.

Jewell v. Schell, 103 Kan. 604, 175 P. 970.

10 Missouri, K. & T. Ry. Co. v. Bradshaw, 132 P. 325, 37 Okl. 313. 11 Johnson v. Brant, 17 P. 794, 38 Kan. '754.