I agree with those parts of the opinion prepared by Mr. Justice Burr which relate to the matters covered by paragraphs 1 and 2 of the syllabus; but I am not prepared to agree with those parts of the opinion which relate to the matters covered by ¶ 3 of the syllabus.
It is true garnishment is an action and creates no specific lien (Sargent County v. State, 47 N.D. 561, 182 N.W. 270); nevertheless the service of process upon the garnishee operates as an equitable levy upon such property of the defendant as is in the hands of the garnishee at the time of such service (Winner v. Hoyt, 68 Wis. 278, 32 N.W. 128; Globe Mill. Co. v. Boynton,87 Wis. 619, 59 N.W. 132; Maxwell v. Bank of New Richmond,101 Wis. 286, 77 N.W. 149, 70 Am. St. Rep. 926); and such levy creates a right in favor of the plaintiff in the property so held by the garnishee and described in his affidavit admitting liability (Hawley v. Isaacson, 117 Wn. 197, 200 P. 1109, 21 A.L.R. 268).
In this case garnishment process was duly served in August, 1933. The garnishee admitted liability. The defendant died November 9, 1933. In my opinion the death of the defendant did not result in a dismissal of the garnishment action, or in a dissolution of the equitable levy, and the loss of the plaintiff's right in the property garnisheed.
The prevailing opinion is predicated largely on § 8806, of the *Page 82 probate code. But that section does not purport to relate to, or prescribe any rule as to the effect of, the lien or right of lien obtained by levy in attachment or service of garnishment process before the death of the defendant. It relates only to the status and effect of a judgment rendered, against the representatives or successors in interest of a deceased person, in an action pending against the decedent at the time of his death.