Upon this appeal the only questions argued are those touching the sufficiency of the said special defense to warrant the said judgment. The assignment *200of this' contract was made before the recovery of the judgment against the said Smith, and before the commencement of the said garnishment proceedings. It follows that at the time the answer was made by the said appellee in the said garnishment proceedings he was not indebted to said Smith, the judgment debtor therein, nor in any other way liable to him under the terms of the said contract. Tet, as he says in his answer in this case, in ignorance of said assignment he erroneously answered the referee in said garnishment proceedings that he was liable to said Smith under said contract. It does not appear that any action was taken or order made upon the said answer, so that an opportunity was still open to the garnishee to apply to the referee or to the court for leave to correct his said answer before any orders should be made thereon. It is clearly apparent that the facts stated in the said special defense were insufficient to warrant more than a postponement of the case until a final determination of the attachment proceedings were had. McFadden v. O'Donnell, 18 Cal. 160; Crawford v. Slade, 9 Ala. 887.
The judgment should be reversed, and the case remanded with directions that the appellant be allowed to reply to the answer in the case upon such terms as may be deemed just.
Rising and De France, CO., concur.
Per Curiam.For reasons stated in the foregoing opinion the judgment is reversed and the cause remanded, with directions mentioned in the concluding paragraph.
■Reversed.