affidavit that defendant has no property liable to execution sufficient to satisfy plaintiff's demand is untrue.34

Where bond is required, the failure to make bond is ground for quashing a garnishment.35

Where, on a motion to discharge a garnishment, it is made to appear that the defendant has property subject to execution sufficient to satisfy plaintiff's claim, the garnishment must be discharged; 36 also where it appears that the garnishee has no property or funds subject to garnishment.37

(Caption.)

MOTION TO DISCHARGE GARNISHMENT

Comes now the above named defendant and moves the court to discharge the garnishment herein, and to release the garnishee from further liability thereunder, for the following reasons, to wit:

1. That the grounds alleged in plaintiff's affidavit for garnishment are each and every one untrue.

2. That this defendant has more than sufficient property liable to execution sufficient to satisfy plaintiff's demands and the indebtedness alleged in his petition, consisting, among other such property, of the following: (Describing same.)

3. That no bond for costs or security therefor, or poverty affidavit, was filed in this court, at the commencement of said action, as provided by law.

4. That no garnishment bond was filed herein prior to the issuance of the garnishment summons, as required by law.

(Verification.)

X. Y., Attorney for Defendant.

34 Ed Hockaday & Co. v. King, 31 Okl. 127, 120 P. 565.

35 Where in suits in attachment writs of garnishment were issued not only an affidavit, but also a bond, was required, and failure to make either would on motion cause the writ of garnishment to be quashed and the garnishee to be discharged. Arnold v. McLellan, 112 P. 1018, 27 Okl. 598.

Garnishee's prompt application to vacate order, showing that after answer admitting his indebtedness for balance of purchase price and after order to pay money into court he learned that defendant had mortgaged and disposed of property and that plaintiff had procured mortgage, and so knew garnishee was not liable, and induced him to believe that defendant might sell property, warranted vacation of order, and correction of answer so as to state actual facts. Jewell v. Schel, 103 Kan. 604, 175 P. 970.

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

37 In moving to dissolve garnishment process and to discharge garnishees

§ 1876. Bond releasing garnishment-Form-Exceptions

"The defendant may, at any time after the garnishment affidavit is filed, and before judgment, file with the clerk of the court an undertaking, executed by at least two sureties, resident freeholders of the state, to the effect that they will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against such defendant in the action, with all costs not exceeding a sum specified, which sum shall not be less than double the amount demanded by the complaint on file, or in such less sum as the court shall, upon application, direct. The sureties shall justify their responsibility by affidavit annexed stating a sum which each is worth, in property within this state, over and above all his debts and liabilities and property exempt from execution, the aggregate of which sums shall be double the amount specified in the undertaking. The defendant shall serve a copy of such undertaking, with a notice where and when the same was filed, on the plaintiff. Within three days after the receipt thereof the plaintiff shall give notice to the defendant that he excepts to the sufficiency of the sureties, or he shall be deemed to have waived all objections to them." 38

Where an undertaking is executed by defendant and garnishment proceeding is thereby discontinued, defendant is estopped from questioning the regularity of the garnishment proceedings.39

A bond releasing garnishment proceedings, and binding the obligors "to pay any judgment which may be rendered against the defendant on final hearing of the case," binds them to pay a final judgment rendered against defendant in the district court on appeal by plaintiff; and the fact that after judgment for defendant in the justice's court the garnishment proceedings could, but for the bond,

one of the grounds was a denial of the truth of the allegations in the affidavit for "attachment," where manifestly the word "garnishment" was intended. Following the making of the motion testimony was received and considered by the court on an agreement of the parties, as if an issue had been formed on the truth of the allegations in plaintiff's affidavit for garnishment, and the court, having found that the garnishees had no property or funds subject to garnishment process, discharged the garnishees. Held not error. P. Cox Mfg. Co. v. August, 32 P. 636, 51 Kan. 59; Lewis v. Same, Id.; Barton v. Same, Id.

38 Rev. Laws 1910, § 4838.

39 Munson v. First Nat. Bank of Okmulgee, 58 Okl. 284, 159 P. 486; St. Louis Cordage Mills v. Western Supply Co., 54 Okl. 757, 154 P. 646.

be revived by appeal or error, constitutes sufficient consideration for the continuing obligation of the bond after such judgment for defendant.40

"When the plaintiff excepts, the sureties shall appear for justification before the judge of the district court or the county judge of the county in which the action is brought, at a time and place to be mentioned in the notice given by the plaintiff and may be examined on oath on the part of the plaintiff touching their sufficiency, in such manner as the judge in his discretion may think proper. The examination shall be reduced to writing and subscribed by the sureties, if required by the plaintiff. If the judge find the sureties sufficient he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk of the district court. Thereafter all the garnishees shall be discharged, and the garnishment proceedings shall be deemed discontinued, and any money or property paid or delivered to any officer shall be surrendered to the person entitled thereto, and the costs shall be taxable as disbursements of the plaintiff in the action if he recovers. The judge may in his discretion require the costs of the justification before him, including fees to the sureties as witnesses, to be forthwith paid by the party requiring justification." 41

(Caption.)

UNDERTAKING FOR GARNISHEE'S DISCHARGE

Know all men by these presents, that we, the undersigned, are held and firmly bound unto

the plaintiff in the above entidollars, lawful money of the

tled action, in the penal sum of United States, for the payment of which well and truly to be made we bind ourselves, our heirs, executors, administrators, and assigns, jointly and severally by these presents.

The condition of the above obligation is such that, whereas, the above named defendant has been sued in the above entitled court, by the above named plaintiff, to recover the sum of — dollars, and his property has been seized in garnishment therein:

Now, therefore, if the said defendant shall pay to the plaintiff on

40 Washer v. Campbell, 21 P. 671, 40 Kan, 747.

41 Rev. Laws 1910, § 4839.

demand the amount of any judgment and all costs that may be rendered against said defendant in said action, not exceeding the sum of the penalty hereof, then this objection to be void; otherwise, to remain in full force and effect.

Witness our hands this

day of

19—.

(Qualification of sureties.)

DIVISION VI.-CLAIMS BY THIRD PERSONS

§ 1877. Disclosure by garnishee-Order-Notice-Default "When the answer of the garnishee shall disclose that any other person than the defendant claims the indebtedness or property in his hands, and the name and residence of such claimant, the court may, on motion, order that such claimant be interpleaded, as a defendant to the garnishee action; and that notice thereof, setting forth the facts, with a copy of such order, in such form as the court shall direct, be served upon him; and that after such service shall have been made, the garnishee may pay or deliver to the officer or the clerk such indebtedness or property, and have a receipt therefor, which shall be a complete discharge from all liability to any party for the amount paid or property so delivered. Such notice shall be served in the manner required for service of a summons in a civil action, and may be made without the state or by publication thereof, if the order shall so direct. Upon such service being made, such claimant shall be deemed a defendant to the garnishee action, and within twenty days shall answer, setting forth his claim or any defense which the garnishee might have made. In case of default, judgment may be rendered, which shall conclude any claim upon the part of such defendant." 42

It is the duty of one summoned in garnishment, holding property in the name of, or apparently that of, the defendant debtor, having notice of the claim of a third party to the property, to disclose, by its answer, the name and post-office address of such claimant, the fact that such claim is made, and the nature of such claim so

42 Rev. Laws 1910, § 4834.

HON.PL.& PRAC.-110

(1745)

far as known to the garnishee, that such claimant may be interpleaded, and the garnishee may be relieved from liability by delivery of the property to the officers of the court, as provided by statute.43

(Caption.)

MOTION

Comes now the K. G. Company, a corporation, interpleader herein, by its attorney, M. H., and respectfully represents and shows to the

court:

1. That the W. S. Company is a corporation duly organized and existing under and by virtue of the laws of the state of and that it now is and was at all times hereinafter mentioned doing business in this state.

2. That the answer of the garnishee herein, the P. O. Company, a corporation, filed in the above entitled cause on the

day of

19-, discloses that at the time of the service of the summons in garnishment herein said garnishee had on its books to the credit of the defendant, N. L., the sum of $, which funds are now being held in the hands of said garnishee; that said answer further discloses that demand has been made upon said garnishee by the W. S. Company, claiming to be the owner of said funds, and that said garnishee is not advised as to the interests of said parties therein; that said answer further asks the court to protect said garnishee in any order made relative to said funds.

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

In a suit by the state on a note given to an insolvent bank, with garnishment upon a national bank and upon maker's partnership, which answered that it owed certain sum to the maker and against the bank which admitted the copartnership's deposit thereafter garnisheed by maker, a plea in intervention by another bank alleging its payment of a draft against the maker and his assignment thereof to it, states a cause of action. City Nat. Bank of Hobart v. State (Okl.) 176 P. 232.

When a bank summoned as garnishee has on deposit money deposited by the defendant debtor, and has notice of the claim of a third party thereto, and files its answer denying all liability as garnishee, without making disclosure of the facts, and the plaintiff elects to take issue on such answer, if it is disclosed on the trial that the garnishee had such money on deposit at the time of the service of the summons in garnishment, the garnishee will not be permitted to defend or escape liability on the ground that some third party is entitled to the property. Rock Island Lumber & Mfg. Co. v. Fourth Nat. Bank, 66 P. 1024, 63 Kan. 768.