It was manifest error in the court below to render final judgment against the garnishees until there had been á judicial ascertainment of the original defendant’s indebtedness to plaintiffs and it had been reduced to a final judgment. Rev. Stat., 1879, sect. 2531; Drake on Attachment, 460.
' The instruction asked by the garnishees should have been given and that given by the court should not have been. The facts proven do not amount to an estoppel. There is nothing to show that the position of plaintiffs was altered to their prejudice. Lewis v. Prenat, 24 Ind. 98 ; Drake on Attachment, sect. 629 a ; Turner v. Waldo, 40 Vermont 51; Jackson v. Pixley, 9 Cush. 490; Warder et al. v. Baldwin, 51 Wis. 450.
Bigelow defines an estoppel in pais as “an express or implied admission become indisputable by reason of the circumstance- that the party claiming the benefit of it has, while acting in good faith and in accordance with the real or presumed assent of the other party, been induced by it to change his position.” Bigelow on Estop-, pel, 387. The case of Lewis v. Prenat (24 Ind. 98), is much .like this in all essential particulars. The court in that case says: “ The matter alleged by way of estoppel, falls very short of being such. It consists merely of the admissions of the garnishee, and that plaintiffs were induced thereby to commence their proceedings against him as garnishee. Where, by the admission of a fact, which is not true, one throws another into a line of conduct, which must result to his injury, if the fact be otherwise than it was represented, the party will not afterwards be permitted to show the truth to be otherwise.
“It is difficult to see how the doctrine could apply against a garnishee as such. He must answer under oath, and to estop him from answering truly, would be to require him to commit perjury; and then, the pleading seems designed to enforce only the rights of the principal *75defendant against the garnishee, and apply them to the satisfaction of plaintiff ’ s demand against him ; and is not designed to enable the plaintiff to compel the performance of additional obligations, which have arisen in his own behalf against the garnishee. But we need not, and do not place the present decision upon either of the grounds last alluded to. It is sufficient that the facts pleaded do not constitute an estoppel. The plaintiff parted with no right, and relinquished no security; he stood exactly as he did before the appellant made the representations to him, except that he commenced his proceedings of garnishment and thereby incurred costs.”
But if this were not the law of estoppel as applied to this case, plaintiffs could not be heard to complain, for they have made no reference to estoppel in the pleading. Facts relied upon as an estoppel in pais, must be specially pleaded ; otherwise, evidence of them cannot be received. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235, 242.
For the error mentioned the judgment is reversed and the cause remanded.
All concur.