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so that where, after the service of process, the garnishee acquires possession of property of the debtor, a subsequent garnishing creditor is entitled thereto, and not the previous garnishing creditor.12 This follows from the fact that a garnishment attaches a lien on the property of the debtor in the hands of the garnishee from the time. of the service.13

No rights can be obtained by subsequent attaching creditors in property previously garnished as against the garnishee.11

A written assignment of a debt owing to a defendant, when free from fraud and for a valuable consideration and made prior to service of writ of garnishment, gives the assignee a right to the amount of the debt, which is superior to the claim of the garnishing plaintiff.15

§ 1871. Defenses-Exemption-Judgments

The pendency of a prior action in another state by the principal defendant as plaintiff against the garnishee as defendant is a defense against the garnishment proceedings which should be interposed by the garnishee.10 Pendency of garnishment in another state is no defense in a creditor's suit against his debtor, the garnishee, on the indebtedness involved in the foreign garnishment proceedings.17

12 Gillette v. Cooper, 30 P. 13, 48 Kan. 632.

Where, at the time of service of garnishee process, defendant is in the employ of the garnishee, and so continues, the proceedings bind only the amount due at the date of service. Burlington & M. R. R. Co. v. Thompson, 1 P. 622, 31 Kan. 180, 47 Am. Rep. 497.

13 R. T. Davis Mill Co. v. Bangs, 49 P. 628, 6 Kan. App. 38.

When plaintiff garnishes a bank he acquires a lien on only such property of defendant as the bank holds when the notice is served on the officers. Johnson v. Brant, 17 P. 794, 38 Kan. 754.

14 Barton v. Spencer, 41 P. 605, 3 Okl. 270.

15 El Reno Foundry & Machine Co. v. Western Ice Co., 54 Okl. 116, 153 P. 1107.

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A plaintiff who causes a garnishee summons to be served on defendant's debtor is not entitled to recover against a prior assignee of the debt for value. Farmers' & Producers' Bank v. First Nat. Bank (Okl.) 168 P. 1008; Market Nat. Bank of Cincinnati, Ohio, v. Raspberry, 124 P. 758, 34 Okl. 243, L. R. A. 1916E, 79.

16 St. Louis & S. F. R. Co. v. Crews, 51 Okl. 144, 151 P. 879, Ann. Cas 1918C, 823.

17 Missouri, K. & T. Ry. Co. v. Housley, 46 Okl. 216, 148 P. 689.

A garnishee can interpose the claim of exemption in behalf of his creditor.18

When the purchasers of land agree as a condition precedent to such purchase, and as a part of the consideration thereof, that they will pay a debt of their grantor, it is no defense to an action by the holder of such debt that they have been served with notice of garnishment by other creditors of their grantor.19

A judgment against a garnishee and satisfaction thereof will af ford the garnishee full protection against all third parties claiming the fund in the hands of the garnishee at the time of the service of summons in garnishment, of whose claim the garnishee had no knowledge, and will also afford protection against all third parties, who, knowing the property claimed by them has been arrested in the hands of the garnishee, fail to assert their rights thereto by interpleading in the garnishment proceedings. Where a judgment in garnishment proceeding is rendered against a bank on its denial of liability, without its disclosure that the property was claimed by a known third person, such judgment and satisfaction is no defense as against such claimant.20

A garnishee, to be entitled to set up payment of judgment against him in a garnishment proceeding as a defense to an action by his creditor for the garnisheed debt, should plead and prove that he discharged his duty to the creditor by giving notice and defending in the garnishment proceedings. A judgment against a garnishee in a court not acquiring jurisdiction of the person of the principal defendant, which does not recite that the garnishee disclosed any defense, is not an adjudication of any issue as to whether the garnishee

18 Mull v. Jones, 5 P. 388, 33 Kan. 112.

To garnishee proceedings it is no sufficient answer that the debt of the garnishee to the defendant is by the laws of the state where both defendant and garnishee reside exempt from seizure under such process. Burlington & M. R. R. Co. v. Thompson, 1 P. 622, 31 Kan. 180, 47 Am. Rep. 497.

In an action to recover wages earned in, and exempt under the laws of, this state, the pendency of a garnishment against plaintiff in another state, where in defendant was summoned as garnishee and service made on plaintiff only by publication, is no defense where such wages were also exempt by the laws of such other state. Missouri Pac. Ry. Co. v. Sharitt, 23 P. 430, 43 Kan. 375, 387, 19 Am. St. Rep. 143, 8 L. R. A. 385, 389.

19 Rickman v. Miller, 18 P. 304, 39 Kan. 362.

20 Rock Island Lumber & Mfg. Co. v. Fourth Nat. Bank, 66 P. 1024, 63 P. 768.

§ 1871 discharged his duty to the principal defendant in respect to notice and defenses.21

Liability of principal and sureties upon a discharging bond in attachment may be satisfied by a payment under a judgment in garnishment brought by a creditor of the judgment plaintiff.22

A garnishee paying money into court pursuant to an order of a court which has not acquired jurisdiction cannot plead such payment as a defense in an action by the defendant.28

Where intervener, claiming funds in possession of garnishee, withdraws his petition, the garnishee need not serve notice of proceeding on claimant or interpose any defense in his behalf, and garnishee's payment of judgment is binding on such claimant.24

A garnishee who, with full notice of a third person's claim, admits an indebtedness to the defendant, and tells the court nothing of such claim, cannot set up the judgment in the garnishment proceedings, and his payment into court thereunder, as a defense to a suit by the claimant.25

An answer to a suit for debt, which pleads in bar a judgment in another state against defendant as garnishee, is demurrable, where it does not show that the demand sued for is identical with that adjudicated in the garnishee proceedings, 20

Where defendant set up a judgment of a justice in another state, wherein plaintiff was made defendant, and defendant in the pending action was garnishee, but the foreign judgment failed to show appearance or service of summons by publication or otherwise, it was void, and was no defense.27

It is not a bar to an action for wages in a state where wages are

21 St. Louis & S. F. R. Co. v. Crews, 51 Oki. 144, 151 P. 879, Ann. Cas. 1918C, 823.

In action against E. in McC. county, with garnishment against a railroad which admitted an indebtedness to E., and where E.'s motion to set aside summons on ground that he resided in P. county was overruled, and judgment rendered for plaintiff, which garnishee paid, and where there was no appeal, judgment was not void on collateral attack. Atchison, T. & S. F. Ry. Co. v. Edwards (Okl.) 175 P. 938.

22 Priboth v. Chism, 62 Okl. 300, 162 P. 1103.

23 First State Bank of Addington v. Latimer, 48 Okl. 104, 149 P. 1099. 24 Schenbeck v. First Nat. Bank (Okl.) 169 P. 619, L. R. A. 1918B, 1066. 25 Muse, Spivey & Co., v. Lehman, 1 P. 804, 30 Kan. 514.

26 Brown v. Stogsdale, 140 P. 60S, 42 Okl. 131.

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

exempt that judgment for such wages had been rendered against defendant, as garnishee of plaintiff, in a state where wages are not exempt.28

Refusal of an Oklahoma court to give a Kansas judgment against garnishee effect as an adjudication of whether the garnishee discharged his duty to the principal defendant as to notice and defenses is not a denial of the full faith and credit to which a judg ment is entitled.29

An order to the garnishee to pay money into justice court not being a judgment, it was no defense to an action against the garnishee by a claimant of the money that the money was paid out in pursuance of such an order.3°

§ 1872. Action by defendant against garnishee

"No action shall be commenced by the defendant or his assignee against a garnishee upon any claim or demand liable to garnishment, or to recover any property garnished, or execution be issued upon a judgment in favor of defendant against such garnishee subsequent to the service of the garnishee summons upon him, until the termination of the garnishee action; and if an action shall have been commenced or an execution issued, it shall be stayed by the

28 Chicago, R. I. & P. Ry. Co. v. Sturm, 49 P. 337, 5 Kan. App. 427. Contra, see Union Pac. Ry. Co. v. Baker, 47 P. 563, 5 Kan. App. 253.

Where, in an action for wages, defendant railroad company set up a judg ment against plaintiff in a justice court in Missouri in which the company was garnished, at which time Rev. St. Mo. 1899, §§ 3447, 3448, provided that no garnishment should issue against any railroad where the sum demanded was not over $200, and where the property garnished was wages due, until judgment against defendant in the action, no personal judgment having been obtained against defendant, the proceedings in Missouri were void and no defense to the action in the state. Missouri, K. & T. Ry. Co. v. Houseley, 132 P. 330, 37 Okl. 326.

Where an employé and resident of Kansas performs labor there for a railway company, a corporation of another state, but also doing business in Kansas, and the wages of such employé are exempt in both states, in an action by the employé to recover such wages in Kansas, the fact that the corporation has been garnished in such other state by a creditor of such employé before the bringing of this action in Kansas, and service of summons obtained on the employé only by publication, is no defense to such action. Missouri Pac. Ry. Co. v. Sharitt, 23 P. 430, 43 Kan. 375, 387, 8 L. R. A. 385, 389, 19 Am. St. Rep. 143.

29 St. Louis & S. F. R. Co. v. Crews, 51 Okl. 144, 151 P. 879, Ann. Cas. 1918C, 823.

30 Bank of Le Roy v. Harding, 41 P. 680, 1 Kan. App. 389.

court or a judge thereof, upon the garnishee's application; except that upon cause shown, the court or a judge may by order permit the commencement of such an action, or the issue of an execution, or the further prosecution of one stayed." 31

1873. Costs

"In case of the trial of any issue between the plaintiff and any garnishee, costs shall be awarded to the plaintiff and against the garnishee, in addition to his liability, if the plaintiff recovered more than the garnishee admitted by his answer; and if he do not the garnishee shall recover costs of the plaintiff. The costs shall include an attorney's fee of twenty-five dollars, to be taxed in favor of the prevailing party. In all other cases under this article, not expressly provided for, the court may award costs in favor of or against any party, in its discretion. When there is no issue for trial, and any liability on the part of the garnishee is disclosed, the costs of the garnishment proceedings shall be taxed for the plaintiff, if he recovers as disbursements in the principal action." 32

§ 1874. Injunction

Where plaintiff has an ample remedy by garnishment proceedings, which he has already instituted in the district court against defendant, who has fraudulently and collusively attached the property of plaintiff's debtor, he is not entitled, for his further protection, to a temporary injunction either in the district or supreme court to restrain defendant from disposing of the goods so attached.33

§ 1875.

DIVISION V.-DISCHARGE OF GARNISHMENT

Grounds-Motion-Form

The court can dissolve a garnishment and discharge the garnishee on motion of the defendant, by showing that the allegations in the

31 Rev. Laws 1910, § 4837.

32 Rev. Laws 1910, § 4840.

Where intervener successfully maintains his claim to property garnished, he cannot recover from the garnishing plaintiff damages for attorney's fees, hotel and traveling expenses incurred in intervening; Laws 1913, c. 121, not applying. Squires v. Polley, 55 Okl. 224, 154 P. 1166.

33 Van Natta-Lynds Drug Co. v. Gerson, 23 P. 1071, 43 Kan. 660.

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