62 Ark. 616 | Ark. | 1896
Two questions are presented for our ?onsideration.
First. Can a suit instituted by a plaintiff in an attachment proceeding against a person summoned as a g-arnishee in such proceeding, whose answer was unsatisfactory to the plaintiff, be legally prosecuted to judgment before the plaintiff recovers judgment in the action in which the order of attachment was sued out, and before the attachment in the same is sustained?
Second. Can the action instituted against the garnishee be consolidated with the action in which he was summoned?
First. An order of attachment, the execution of it, and the disposition of the property attached constitute a proceeding ancillary to the action in which it is pending. It depends upon such action for its existence and support, and is a provisional execution of the judgment in the same, provided before its recovery. As a part of this proceeding, persons indebted to the defendant may be summoned as garnishees for the purpose of aiding in the accomplishment of the same design — the satisfaction of such judgment. When summoned, each of them is required to disclose truly the amount owing by him to the defendant, whether due or not, and the property in his possession or control. If he fails to make a disclosure satisfactory to the plaintiff, the latter can proceed in an action against him by filing a complaint and suing out a summons. (Sand. & H. Dig., sec. 360). As to the time when the action shall proceed to judgment, the statute is silent, but it does provide that when it is instituted “such proceedings may be had as in other actions, and judgment (shall) be rendered in favor of the plaintiff to subject the property of the defendant in the hands of the garnishee, or for what shall appear to be owing to the defendant by the garnishee,” and that “the judgment shall be enforced by execution or other proper means.” When- the object of the garnishment is considered, in connection with these provisions of the statute, it is apparent that the action against the garnishee should not be prosecuted to final judgment until the plaintiff recovers judgment against the defendant in the main action; for until then he does not become subrogated to the defendant’s right of recovery, and éntitled to a judgment against the garnishee and satisfaction thereof, as provided by the statute. Giles v. Hicks, 45 Ark. 271; Penyan v. Berry, 52 Ark. 130.
As the action against the garnishee cannot be legally prosecuted to final judgment before plaintiff recovers a judgment against defendant in the main action, it necessarily follows that the issue joined between him and the garnishee should not be tried before that time; for a trial before then would avail nothing.
The garnishment being a part of the attachment proceeding, the plaintiff is not entitled to recover against the garnishee until it is sustained; for the garnishment is as much dependent on the grounds upon which the order of attachment was sued out as any other part of the attachment proceeding, and is based on the right to the attachment and its maintenance; and the plaintiff’s right to recover against the garnishee depends on the validity of the garnishment. Upon the discharge of the attachment the defendant is entitled to the return of all his lands, goods, chattels, and choses in action which are held subject to any judgment that might be recovered against him.
Second. The main action and the action against the garnishee should not be consolidated. The former must be prosecuted to a judgment against the defendant before the issues in the latter can be legally tried. A consolidation cannot avoid this and enable the court to try them as one action. The parties and issues are different, and in whatever manner they may be tried the issues in the latter must be separately and last determined.
The judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion.
