¶1concurring.
¶2I think that the conclusion of the majority opinion is right, but it seems to me that the opinion is indefinite and unsatisfactory.
¶3What should the district court have tried, and what questions will it try now, if this cause is remanded? Is the judgment of the plaintiff against Munce vacated? Will that issue have to be tried again? Is the liability of the sugar company open for investigation by this appeal? Can an appeal be taken from a judgment of the county court in any case without first filing a motion for a new trial and getting a ruling thereon? The syllabus and opinion imply that, with the exception named, a motion for new trial is necessary and no appeal can be taken without *716such motion. O’Donohue v. Hendrix, 13 Neb. 255, is quoted from: “A motion for a new trial is necessary only in those cases where a trial has been had.” This, of course, amounts to saying that when a trial has been had a motion for new trial is necessary. That is the rule in the district court, ¿s there held. This opinion appears to apply it to cases in the county court.
¶4I understand that it has not been the practice to file motions for new trial in the county courts before appealing, and this opinion will by implication, and without reasoning or discussion, call for an entire change of practice in those courts upon appeal. I think that, if that is the correct construction of the statutes, the practice should be made plain and the reasons given for such a holding.
¶5In the district court, which is a court of general equity jurisdiction, a party can intervene even in garnishment proceedings and have his equitable interest in the property established. This was so decided in Farrington v. Fleming Commission Co., 94 Neb. 108. That case is cited as applying to the county court, which has no general equity jurisdiction.
¶6So, far as the rights of Munce and Vandeventer depended upon the equities between them, could the county court allow Vandeventer to become a party for the purpose of trying those equities? The sugar company was rash in its willingness to pay the money into court. Unless the plaintiff in the case could show that the defendant had a clear legal right to the money in the hands of the garnishee, the court would be without authority to order the money paid into court and apply it on the plaintiff’s claim, and, when Vandeventer filed his objections, prudence would have dictated to the sugar company to have insisted upon those objections, because, if the company failed to do so, Vandeventer’s right to the money, as against the company, would not be determined by the action and the company would be still liable to Vandeventer. That is the way the thing ordinarily proceeds in garnishment. If some third party claims the money, the court will not order it paid upon the judgment against the *717defendant until the rights of the parties claiming the money are determined. In the district court they could be determined by filing a petition equitable in its nature, if the rights of the parties depended upon the equities between them, but whether that could be done in the county court I think this court has never determined. For instance, if one of two partners was garnished, and it appeared that the partnership was not indebted to the principal defendant, and the equities between the partners had not been settled, it would require a court of equity to determine whether the garnishee should pay money into court.
¶7It is said in the opinion: “The correctness of the ruling of the county court is not before us.” The county court sustained the demurrer to Vandeventer’s objection and dismissed the intervener. The district court first made an order reversing the county court and overruling the demurrer, and afterwards (it does not appear from the opinion whether it was at the same or at a subsequent term of court) that court dismissed the appeal. If it was at a subsequent term of the district court, would the court have jurisdiction to dismiss the appeal? If it was at the same term, it would vacate the ruling upon the demurrer filed in the county court. If the judgment of the district court is reversed, the judgment of the county court should be reversed also, and that court should allow the garnishee to answer that the money in his hands belongs to parties other than the principal defendant.