Appellant brought this action upon certain promissory notes executed by respondent Andrus. A writ of attachment was issued and served upon the Citizens National Bank of Salmon City, by which it was sought to garnishee certain money in its possession. The money had been paid into the bank by Frank G-. Hussey, to be credited upon a note executed by him and payable to Andrus. Respondent Daniels intervened in the action, setting up that the Hussey note had been indorsed and assigned by Andrus to him. Judgment was entered for Daniels upon his complaint in intervention. The appeal is from the judgment and from an order denying appellant’s motion for a new trial.
A motion to dismiss the appeal has been made upon the ground that notice thereof was not served upon the Citizens National Bank, which it is claimed is an adverse party in this appeal. Whether a garnishee is an adverse party upon appeal depends upon the issues and the character of the judgment rendered. The record in this case is deficient, in that it does not contain the answer of the garnishee to the writ. It does not appear from the record that the garnishee makes any claim to the fund in its possession. The record justifies the presumption that no such claim was made,’ since the same attorney represented it and the plaintiff in intervention at the trial. The motion to dismiss the appeal is denied.
Appellant answered the complaint in intervention, and alleged that the pretended transfer of the note to Daniels was made with intent to hinder, delay and defraud creditors of Andrus, and was therefore void as to such creditors.
It is contended that the evidence is insufficient to sup*417port the judgment. The evidence was sufficient to establish the transfer of the note to Daniels. The burden was upon the appellant to prove that the transfer was fraudulent. There was not sufficient evidence of fraud to warrant this court in interfering with the judgment.
The judgment and order are affirmed, with costs to respondents.
Budge, McCarthy, Dunn and Lee, JJ., concur.