I do not concur in the opinion of the court in this case, in so far as it reverses the judgment of the court below as to the claim of Gaines, administrator of the estate of C. H. Carlton, deceased.
It appears that, just previous to the execution and delivery of the assignment by Meyer for the benefit of his creditors, C. H. Carlton, appellee’s intestate, having a debt against him, sued out his attachment, and had service by garnishing W. W. Johnson, the intestate of appellee, A. B. Johnson. Johnson answered, substantially, that the one matter between him and Meyer was then the subject of pending litigation, and that it would be impossible for him to say what was due from him to Meyer, if anything, until that litigation should be terminated. This answer being, in the legal sense, satisfactory — that is to say, being such only as Johnson could make at the time — Carlton took his judgment of attachment against Meyer, and suffered the garnishment proceedings to remain as they were on coming in of garnishee’s said answer, apparently awaiting the determination of the matters between Johnson and Meyer, as suggested in the answer. It appears that, after the matter between Johnson and Meyer had been determined (the other creditors of Meyer, having become parties to this controversy in the meantime), Carlton asked and obtained leave to intervene for the protection of his rights in the premises, and to be paid out of the funds found to be owing from Johnson to Meyer, and the court below sustained his claim, but its judgment in that respect is reversed by the opinion of this court.
I think Carlton had a first claim on any funds in the hands of Johnson belonging to Meyer, or any indebtedness of the former to the latter existing at the time of the service of the writ of garnishment, provided the assignment had not been fully executed and delivered before that time, which the court below seems to have found not to be the case. Carlton was not compelled by statute to institute regular suit against Johnson after the coming in of his answer, for two reasons : first, because such a procedure is not compulsory in any event, and, secondly, because it is only required, at all events, in case the answer of the garnishee failed to make satisfactory disclosures, or made a disclosure upon which judgment could be rendered.
The garnishee’s answer in this case was unobjectionable. It disclosed all that could be disclosed, and its statements were necessarily satisfactory so far as the garnishee was expected to make it. A formal suit against the garnishee, at the time, could have had no other result than was finally obtained, since it also would have had to await the end of the controversy between Johnson and Meyer. All the world must have taken notice of the pendency of the garnishment proceedings, and the record would show the cause of the delay in those proceedings. There is no rule by which a proceeding is dismissed for unnecessary delay, except at the instance of the party against whom the proceedings are had, or whose rights they are calculated to prejudice in some way. Certain it is, that Carlton could not be expected to' have his own proceedings dismissed because they could not be concluded satisfactorily within a great length of time. When the matters between Johnson and Meyer were finally determined, and Johnson was found to have been owing Meyer at the time of the service of the writ of garnishment upon him, Carlton filed his intervention to have his rights finally determined. Since there was no necessity, and really no grounds under the statute, for Carlton to institute a formal suit against his garnisheé, Johnson, there can be no application of the statute of limitations to delay in bringing such a suit. It was simply a case of pending proceedings undisposed of, during which there can be no point at which the statute begins to run. The question is one rather whether or not garnishment proceedings end as a matter of law on the coming in of the garnishee’s answer. I think they do not, and that it depends altogether on the character of the answer as to what shall be the subsequent proceedings, or when they shall be resumed, as in this case. I think there was no error in the judgment of the court below in this respect, and in so far its judgment should have been affirmed.