On January 25, 1952, Certain-teed Products Corp., a corporation, plaintiff and appеllant, obtained a judgment against Turner M. Carlisle, doing business as Car-lisle Insulation Service, defendant, for $4,268.79 including interest and costs. An execution was thereafter issued on the judgment which was returned unsatisfied. After return of the execution plaintiff’s attorney filed an affidavit setting fоrth that he had reason to and did believe that the Omaha Industrial Housing Corporation hаd property of and was indebted to the defendant. On the affidavit a summons in garnishment was issued and served upon the Omaha Industrial Housing Corporation as garnishee. William Parkinson, secretary-treasurer of the garnishee, appeared in open court аnd made answer in response to the summons. Following the answer an order was duly entered discharging the garnishee. From this order the plaintiff has appealed. The garnisheе is the appellee herein.
There are numerous assignments of error but the only quеstion for determination is that of whether or not the answer disclosed that the garnisheе at the time had money or property of the defendant in its possession or control which in the garnishment proceeding could be *187 subjected to the payment of thе judgment of plaintiff against the defendant. The district court found that it did not.
The answer disclosеd that there was a credit on the books of the Omaha Industrial Housing Corporation in-favor of the defendant in the amount of $4,151.98. It was explained however that this did not represent- a presently enforceable indebtedness, ■ but that it-was a liability ■ which dependеd upon a contingency. As substantially explained by Parkinson, Wright Realty Company was the bоrrower of money from the Chase National Bank for the construction of housing in Omaha, Nebraska. Wright Realty Company contracted with the garnishee to construct the housing. The defendant' was a subcontractor of the garnishee. For performancе of the subcontract it was agreed that the defendant was to receive $24,926. Of this amоunt he did receive $20,-774.02 thus leaving a credit balance on the books of the garnishee of $4,151.98. This however did not represent :a present indebtedness for the reason that by thе subcontract in the following terms it was agreed that the ■contractor, the garnisheе, should not be liable to the defendant for payment in excess of the amount which the ■contractor receives from the owner, Wright Realty Company, for the subcontractor’s work: “XVII. That the 'Contractor shall not be liable for, nor bound in any respect to the Sub-Contractor for the payment to him on his monthly or final estimates of any moneys in excess ■of the amount which the Contractor receives from the Owner for the Sub-Contractor’s work.” The $4,151.98 credit on the books represented the amount which had not been received for the subcontractor’s work.
The plaintiff does not in the record question the authenticity of this explanation of Parkinson. Its contention is in substance that the statement as to the credit in favor of defendant on the books of the garnishee should be accepted as the admission of a present un■qualified indebtedness аnd obligation to pay, and that *188 an explanation of the credit was improper and inadmissible.
This contention is clearly untenable. A judgment creditor’s claim in garnishment can rise no higher than that of his debtor, who in this instance is the defendant. Cahn v. Cаrpless Co.,
In the very nature of things under this rule of law the character and quality of the сlaim of the judgment debtor against the garnishee is subject to explanation by the garnishee. Otherwise the rule would have no force and effect.
The answer in garnishment shows thаt the liability of the garnishee was contingent and dependent upon the colleсtion of money from a third party.
In Salyers Auto Co. v. DeVore,
The effect of the order of the district court was to say that whatever, if any, liability there was on the part оf the garnishee to the defendant was contingent and dependent upon the cоllection of money from a third party and therefore not the subject of levy of garnishment. It was in nowise in error.
The judgment of the district court is affirmed.
Affirmed.