Campbell, C. J.,
delivered the opinion of the court.
Until final judgment in favor of Bean against the appellee on his claim for damages she could not be said to be his debtor, so as to be held as a garnishee. The service of a summons on her as garnishee *220could not prevent her from moving for and obtaining a new trial or deprive her of the right to obtain a new trial on any terms she could make with her adversary, and when the judgment was set aside she was not indebted to Bean, and therefore not liable as garnishee. To deny her the right to bargain with Bean as she saw fit, so long as the litigation between them was not finally concluded by judgment against her, would be to prejudice her as a litigant with him by summoning her as garnishee, which is not allowable. Although she agreed to pay a sum of money to extinguish the demand it was for a demand not subject to garnishment when the payment was made. During the term the judgment was subject to be set aside, and until set aside during the term must be regarded as partaking of the nature of the demand on which it was founded.
Judgment affirmed.