Fearing v. Shafner

Cooper, C. J., delivered the opinion of the court. Under § 2442 of the Code of 1880 a plaintiff in attachment may subject to his debt any indebtedness owing by the garnishee to the defendant at the time of the service of the writ, or after that time and before the day at which by law he is required to exhibit his answer. But if at the time the answer is filed the garnishee is not indebted to the defendant and has none of his property or effects in his hands or possession, the plaintiff cannot by continuing the cause acquire the right to recover against the garnishee for matters arising pendente lite after the answer. The right of the plaintiff and the liability of the garnishee are to be tested by the condition of things existing when the answer is or should be filed. If the garnishee admits an indebtedness not then due, judgment may be taken with a stay of execution until its maturity, under § 2445, but this provision is not applicable to the facts disclosed by the record in this case. The answer of the garnishee showed that at the return term of the writ he had none of the effects of the defendant in his hands or possession. Until confirmation of the sale of the land, either by the court or by the parties, the money in the hands of the commissioner (the garnishee) was the property of Allen, the purchaser. Klein, the defendant in attachment, had no interest in the fund ; the commissioner held it, not for him, but as the mere depositary of Allen, the purchaser. State, use, ete., v. Cox et al., ante 786. The fund was not garnishable until after confirmation' of the sale and-the final decree of the court ordering distribution; and the fact that the appellee’s suit remained pending in court until after this did not create a right in him to subject it. Case & Co. v. Miracle, Executor, 44 Wis. 295. After the order- of confirmation and for distribution the defendant, Klein, had an interest in the fund and the right to demand its immediate payment from the commissioner, and thereupon it [796] became garnishable in his hands. Burleson v. Milan, 56 Miss. 399. The appellee, having no right to subject the fund to his judgment under the garnishment, has no interest in the question as to whether the appellant is the owner of the claim asserted by him against Klein. That was a defense to be insisted on by the debtor. Moody v. Ivins, 59 Miss. 327. The judgment is reversed, and a judgment directed to be entered here appropriating-the money to the judgment of the appellant.