Garnishment

A warning to any one for his appearance, in a cause in which he is not a party, for the information of the court and explaining a cause.

Cowell.

Now generally used of the process of attaching money or goods due a defendant in the hands of a third party. The person in whose hands such effects are attached is the gam Uhee, because he is gamiahed, or warned, not to deliver them to the defendant, but to answer the plaintiff’s suit The use of the form ‘'garnishee” as a verb is a prevalent corruption in this country. It is attachment in the hands of a third person, and so is a species of seizure by notice; Beamer v. Winter, 41 Kan. 297, 21 Pac. 251; id., 41 Kan. 596, 21 Pac. 1078. the plaintiff a claim due by a third person to such debtor, it is served on such third person, which notice or service is a garnishment, and he is called the garnishee. There are garnishees also in the action of detinue. They are persons against whon^ process is awarded, at the prayer of the defendant, to warn them to come in and interplead with the plaintiff; but in detinue, the defendant cannot have a 8ci. fa. to garnish a third person unless he confess the possession of the chattel or thing demanded. And when the garnishee comes in, he cannot vary or depart from the allegation of the defendant in his prayer of garnishment The plaintiff does not declare de novo against the garnishee; but the garnishee, if he appears in due time, may have oyer of the original declaration to which he pleads. See Brooks, Abr. Detinue. The process of garnishment Is directly founded upon the writ of attachment as by custom of London, as to the history and character of which see Attachment. This writ reached tae effects of the defendant in the hands of third persons. Its effect is simply to arrest the payment of a debt due the defendant, to him, and to compel its payment to the plaintiff, or else to reach personal property in the hands of a third person. It is known in England and in most of the states of the United States as garnishment, or the garnishee process; but in some, as the trustee process and factorizing, with the same characteristics. As affects the garnishees, it is in reality a suit by the defendant in the plaintiff’s name; Moore v. Stainton, 22 Ala. 831; Tunstall v. Worthington, Hempst.

662, Fed. Cas. No. 14,239.

Garnishment is an effectual attachment of the defendant’s effects in the garnishee’s hands; Kennedy v. Brent, 6 Cra. (U. S.) 187, 3 L. Ed. 194; Blalsdell v. Ladd, 14 N. H. 129; TUllnghast’s Ex’rs v. Johnson, 6 Ala. 514; Bryan v. Lashley, 13 Smedes & M. (Miss.) 284; Hacker v. Stevens, 4 Mc Lean 535, Fed. Cas. No. 5,887; Beamer v. Winter, 41 Kan. 297, 21 Pac. 251; id., 41 Kan. 596, 21 Pac. 1078. It is essentially a legal remedy; and through it equities cannot be settled between the defendant and the garnishee; Harris v. Miller, 71 Ala. 26; Hoyt v. Swift, 13 Vt. 129, 37 Am. Dec. 586; Webster v* Steele, 75 111.

544; Perry V. Thornton, 7 R. I. 15; Massachusetts Nat. Bank v. Bullock, 120 Mass. 86; Sheedy V. Bank, 62 Mo. 17, 21 Am. Rep. 407.

The plaintiff, through it, acquires no greater rights against the garnishee than the defendant has, except in cases of fraud; and he can hold the garnishee only so long as he has, in the attachment suit, a right to enforce his claim against the defendant; Price v. Higgins, 1 Lltt (Ky.) 274; Harris v. Ins. Co., 35 Conn. 810; Waldron v. Wilcox, 13 R. I. 618; Richardson v. Lester, 83 111.

66.

No judgment can be rendered against the garnishee until judgment against the defendant shall have been recovered; Housmans v. Heilbron, 23 Ga. 186; Washburn v. Mining Co., 41 Vt an Indebtedness to the defendant, or the possession of personal proi)erty of the defendant capable of being seized and sold under execution: Maine Fire & Marine Ins. Co. v. Weeks, 7 Mass. 438; Rundlet v. Jordan, 3 Greenl. (Me.) 47; Haven v. Wentworth, 2 N. H. 93; Hutchins v. Hawley, 9 Vt 295; Walke V. Mc Gehee, 11 Ala. 273. And to be a subject of garnishment, the claim must be one for which the principal defendant can maintain an action at law, if due at the time or to become due thereafter; Farwell v. Chambers, 62 Mich. 3i6, 28 N. W. 859; Edney v. Willis, 23 Neb. 66, 36 N. W. 300. The existence of such indebtedness, or the possession of such property, must be shown affirmatively, either by the garnishee’s answer or by evidence aliunde; Porter v. Stevens, 9 Cush. (Mass.) 530; Lomerson v. Huffman, 25 N. J. L. 625; Cameron V. Boyle, 2 G. Greene (la.) 154; Hunt v. Coon, 9 Ind. 537; Reagan v. R. R., 21 Mo. 30. The demand of the defendant against the garnishee, which will justify a judgment in favor of the plaintiff against the garnishee, must be such as would sustain an action of debt, or indebitatus assumpsit; Hall v. Magee, 27 Ala. 414. A non-resident of the state in which the attachment is obtained cannot be held as garnishee, unless he have in that state property of the defendant’s in his hands, or be bound to pay the defendant money, or to deliver him goods, at some particular place in that state; Nye v. Llscombe, 21 Pick. (Mass.) 263; Jones V. Winchester, 6 N. H. 497; Baxter v. ' Vincent, 6 Vt. 614; Miller v. Hooe, 2 Cranch, C. C. 622, Fed. Cas. No. 9,573; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630; Cronin v. Foster, 13 R. I. 196. A debt may be attached in any state where the debtor can be found if the law of the forum authorize attachments; Harvey v. Ry. Co., 60 Minn. 405, 52 N. W. 905, 17 L. R. A. 84. The right to garnish debts due to non-residents payable in a foreign jurisdiction has given rise to much conflict in state courts. The question turns on the doctrine that a debt has a situs and the difference of opinion is as to where it is. Some courts hold that it is at the domicil of the creditor of the garnishment; Nat Bank of Wilmington & Brandywine V. Furtlck, 2 Marv. (Del.) 35, 42 Atl. 479, 44 L. R. A. 115, 69 Am. St Rep. 99; Louisville & N. R. Co. V. Nash, 118 Ala. 477, 23 South. 826, 41 L. R. A. 331, 72 Am. St. Rep. 181; High v. Padrosa, 119 Ga. 649, 46 S. E. 869; Glower v. Varnish Co., 120 Ga. 983, 48 S. B. 855; Central of Georgia Ry. Ck). v. Brinson, 109 Ga. 364, 34 S. B. 697, 77 Am. St Rep. 382; Bullard v. Chaffee, 61 Neb. 83, 84 N. W. 604, 51 L. R. A. 716. In the decisions to this effect it is sometimes admitted that “Hiis fiction always yields to laws for attaching the property of a non-resident, because such laws necessarily assume that the T. Lang, 127 Mo. 242, 29 S. W. 1010, 27 L. R. A. 661, 48 Am. St Rep. 626. In other cases it Is held that statutes and the custom of London may, and often do, for the purpose of garnishment give the debt a situs at the domicil of the debtor; Chicago, B. I. & P. B. Co. V. Sturm, 174 U. S. 710, 17 Sup. Ct. 797, 43 L. Ed. 1144; King v. Cross, 175 U. S. 896, 20 Sup. Ct 131, 44 L, Ed. 211; Swedish* American Nat Bank of Minneapolis y.

Bleecker, 72 Minn. 383, 76 N. W. 740, 42 L. B. A. 283, 71 Am. St. Bep. 492; Douglass v. Ins. Co., 138 N. Y. 209, 33 N. B. 938, 20 L. R. A. 118, 34 Am. St Rep. 448; Lancashire Ins. Co. V. Corbetts, 165 111. 692, 46 N. E. 631, 36