dissenting.
I respectfully dissent. The majority holds that a garnishment is the “kind of independent proceeding which does in fact adjudicate rights of individuals, irrespective of and not conditioned upon what was provided in the original decree.” (Emphasis added). I believe the above holding is inconsistent with prior decisions of the Supreme Court, as well as other courts of this state.
Our Supreme Court has repeatedly held that a garnishment proceeding is “purely ancillary” and “incidental” to the main suit. Dunn v. Bemor Petroleum, 737 S.W.2d 187, 189 (Mo. banc 1987); State ex rel. Eagle Bank & Trust Co. v. Corcoran, 659 S.W.2d 775, 777 (Mo. banc 1983); State ex rel. Bagnell Inv. Co. v. Luten, 647 S.W.2d 539, 541 (Mo. banc 1983); State ex rel. Auchincloss et al v. Harris, 349 Mo. 190, 159 S.W.2d 799, 805 (1942). A garnishment in aid of execution is not thé institution of a new suit even though it results in a judgment which finally disposes of all issues and parties. Seiter v. Tinsley, 479 S.W.2d 217, 218 (Mo.App.1972). A garnishment cannot be independently maintained. Among the “indispensable prerequisites” to the establishment of every garnishment is the existence and validity of the underlying judgment and execution. Dunn v. Bemor Petroleum, supra.
*351The issues in a garnishment are made up of those raised by the garnishor’s denial or exceptions to the answers to interrogatories and the garnishee’s response to the exceptions. State ex rel. Bagnell Inv. Co. v. Luten, supra, at 541 n. 2; Rule 90.13(e). In this case the “pleadings” have not been completed, and we cannot presume that the only issues will be “[t]he rights of Harri-man, his attorneys, and SMSU to the proceeds of [the settlement] checks.” Harri-man and American Mutual may also attack the validity of the judgment or execution upon which the garnishment depends. At least until a separate trial has been ordered on the limited question of the obligation of the garnishee to the judgment debtor, the garnishment cannot begin to be considered as independent of the original proceeding.
The majority seems to say that because new issues have arisen in this garnishment proceeding, it qualifies as a “civil action.” It is the kind of proceeding, not the issues in a proceeding, which qualifies it as a “civil action.” One must identify the nature of the proceeding itself to determine if the rights and remedies sought to be enforced are dependent upon the existence of some other suit.
If new issues, without more, qualify a post-judgment proceeding as a “civil action,” it is hard to imagine any post-judgment proceeding in which a change of judge under Rule 51.05 is not permitted. If this is the rule, each and every execution, garnishment, sequestration, or scire facias incidental to the main suit in which a new set of fact issues might arise is a “civil action.” That result is not within the letter or spirit of Rule 51.05.
More than one execution may be issued at the same time upon the same judgment, and more than one garnishment may be simultaneously issued in aid of an execution. Mo. Creditors’-Debtors’ Remedies §§ 2.3, 3.8 (MoBar 1988). If each garnishment is treated as a separate civil action for purposes of change of judge, we face the specter of multiple garnishments in which multiple judges make conflicting decisions regarding the validity of one judgment or one execution. The potential for mischief is too great.
There are several post-judgment proceedings which have specifically been held not to be civil actions within the meaning of the rules or statutes granting the right to a change of judge. A motion for maintenance and suit money pendente lite after judgment, but pending appeal in a dissolution of marriage action, is not a civil action. Weinbaum v. Weinbaum, 679 S.W.2d 384, 391 (Mo.App.1984); Dardick v. Dardick, 661 S.W.2d 538, 540 (Mo.App.1983). This is so even though a judgment on motions pendente lite “stand upon their own merits and are in no way dependent upon the merits of the issues in the underlying dissolution suit.” Dardick v. Dardick, supra. A renewal of an adult abuse order is not a civil action, even though new acts of abuse “can be” alleged. Capps v. Capps.1 Finally, and perhaps most analogous to garnishment, a scire facias to revive a judgment is not an “action” even though “it partakes of the nature of a new action ... in that it may be pleaded to.” Sutton v. Cole, 155 Mo. 206, 55 S.W. 1052, 1053 (1900).
Without restating the facts in the cases cited by the majority in which a proceeding has been held to be a civil action for purposes of Rule 51.05, those cases fall into two categories. The first category is the truly independent cause of action which happens to share a common caption or case number with an associated cause of action. State ex rel. Interstate Motor Freight System, Inc. v. Hall, 409 S.W.2d 678 (Mo. banc 1966); Crain v. Missouri Pac. R.R., 640 S.W.2d 533 (Mo.App.1982); State ex rel. Brault v. Kyser, 562 S.W.2d 172 (Mo.App.1978). The second category is the motion to modify a divorce in which the proceeding does not seek to enforce a judgment but to obtain relief from a judgment because of *352new facts, conditions, or circumstances. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323 (1952). A garnishment does not fall within the parameters of either category. Rather, it is an enforcement proceeding entirely dependent and predicated upon a supporting judgment and execution. Thus, a garnishment bears a much greater resemblance to the class of cases cited in the preceding paragraph than to the cases relied on by the majority.
The following analysis of the issues is simple and, I believe, in harmony with the general understanding of our profession relating to when a party is entitled to a change of judge under Rule 51.05. Ordinarily, and in this case, the garnishor is the plaintiff.2 Having had the opportunity to disqualify the judge as a matter of right within the time provided by Rule 51.05(b) in the original action, and having failed to timely take advantage of that right, the plaintiff waived the right. I would deny the writ of prohibition. Had a separate trial been ordered on the limited question of the garnishee’s liability to the judgment debtor, and had the garnishee requested a change of judge, the result might be different; but that question awaits another day.
The majority result in this case may be laudable. The preferable course might be for the circuit judge, in the prudent exercise of discretion, to grant a change of judge as a matter of expediency. Greene County has a number of circuit judges and associate circuit judges available to accept assignment of the case. 'Thus, it may be that no hardship or delay would be occasioned by granting the change of judge in this case. The same cannot be said in other cases or of all counties and circuits in the state.
The rule enunciated by the majority is in conflict with prior decisions of the Supreme Court and other courts of this state as cited herein. Notwithstanding my high regard for the opinion of my brother judges, I enter my dissent.
. 715 S.W.2d 547, 552 (Mo.App.1986). The majority opinion distinguishes Capps on the basis of an absence of the need to establish new facts to renew an adult abuse order. Capps holds that a renewal order can be based upon new facts or the continued existence of circumstances forming the basis of the initial order. Id. In fact, the evidence in Capps included new threats of abuse. Id. at 548-49.
. What's in a name? That which we call a rose By any other name would smell as sweet. Shakespeare, Romeo and Juliet II, ii, 43.