The prevailing opinion is grounded upon several fallacious assumptions, and therefore is incorrect in reasoning and in result.
The appeal in the main case was taken from a denial of the first cause of action in the suit instituted by plaintiff therein and undoubtedly within the statutory time, since this court had jurisdiction to pass upon it twice. Great Western TheatreEquipment, Inc. v. M. E. Theatres, Inc., 164 Wn. 557,3 P.2d 1003.
When the adverse judgment on that one cause of action was superseded, manifestly the supersedeas had the force of superseding the garnishment against the garnishee defendant.
The following statement and others similar, in the prevailing opinion, are utterly incomprehensible to me:
"We may concede, for present purposes, that the effect of a garnishee process may be revived during the period prescribed by law for the taking of an appeal from the judgment denying recovery in the original action. But it seems plain to us that, until the effect of the judgment is superseded by a perfected appeal and the giving of a proper supersedeas bond, the garnishee defendant may safely pay or deliver to the original defendant the theretofore garnisheed money or property."
The main case, as shown in the former decision, supra, was based upon three causes of action, the second and third of which were confessed and judgment *Page 249 entered thereon, the first being denied by the trial court after a trial on the merits. This was reversed by this court and remanded. The original judgment was entered February 20, 1931. Thereafter, no step whatever was taken in the garnishment matter until February 13, 1932.
The statement quoted in the prevailing opinion seems to imply that the principal action had been terminated in favor of thedefendant. It is shown by the decision, supra, that there had been an affirmative judgment rendered in favor of plaintiff against the defendant, which, of itself, should hold the property impounded by the garnishment. The record and finding in this matter show that the garnishee defendant had paid over to the principal defendant on February 21, 1931, the balance of the funds remaining in its hands.
When the garnishee defendant so paid the funds remaining in its hands, which respondent had garnisheed in the statutory time and manner and maintained the sequestration of the garnishment by supersedeas, under our statute and decisions it certainly is entitled to the garnisheed funds, to the amount of its judgment, until properly released. That, assuredly, is the very object of the garnishment statute. They were, at all times, in custodialegis.
The prevailing opinion virtually overrules a number of our previous cases, among which is Seattle Trust Co. v. Pitner,17 Wn. 365, 49 P. 505, without even dignifying it by mention. That case cannot be distinguished in but one way, and that is in favor of respondent here. There, the garnishee had been formally discharged. In the instant case the garnishee had not been formally discharged, but held. See, also, United States Fidelity Guaranty Co. v. Hollenshead, 51 Wn. 326, 98 P. 749; Mauryv. Toledo Logging Co., 163 Wn. 563, 1 P.2d 896. *Page 250
In the last cited case, we approved the general rule stated in 12 R.C.L. 850:
"If the garnishee transfers during the pendency of the garnishment proceedings any of the property or funds in his hands belonging to the principal debtor, he does so at his peril."
Many other cases decided by this court are, in effect, overruled without mentioning, which renders our practice unsettled and vacillating.
For these reasons, I dissent. The judgment of the trial court should be affirmed.