ON EEHEABINO-.
Ellison, J.A rehearing was granted in this case mainly on two grounds, one of which has been taken out of the case by stipulation of parties as to some facts which had been omitted from the bill of exceptions. The other ground was this: that though the garnishment proceedings before the justice of the peace in Greene county could be amended as between the parties to those proceedings, could they be amended to the prejudice of this plaintiff, who had perfected his garnishment of the garnishee, before the amendments were made and while the proceedings in Greene county were in their illegal condition. It is familiar law that, generally, when amendments are authorized, they will not, when made, be permitted to affect intervening rights of third parties. Phillips v. Holland, 78 N. C. 31; Henderson v. Graham, 84 N. C. 496.
This rule can have no application to the case at bar, from the following consideration: any right which this plaintiff can have against the garnishee is a derivative right. It is derived through the defendant. If the garnishee does not owe the defendant, he can not be made to owe him at the suit of the plaintiff. This plaintiff, deriving his right against the garnishee through the defendant, can be met with the same defense which the garnishee could have made, had he been sued by the defendant. Jewell Pure Water Co. v. Harkness, 49 Mo. App. 357; Zittlosen v. Bank, 57 Mo. *548App. 19; McQuarry v. Geyer, 57 Mo. App. 213. It must undoubtedly be conceded that if the defendant Estep had sued this garnishee, he could not have succeeded against the defense of garnishment under the proceedings before the justice in Greene county. Those proceedings were not void — they only appeared to be without the jurisdiction of the justice from tñe circumstance that the constable had omitted to state a fact in his return which he should have stated. That they could have been amended in a suit by defendant against this garnishee, in accordance with the facts actually existing, though omitted to be shown, is well established. Turner v. Railroad, 78 Mo. 578; Todd v. Railroad, 33 Mo. App. 112; Fee v. Railroad, 58 Mo. App. 90; Forman v. Custer, 9 Kan. 674.
We think the foregoing view disposes of the plaintiff’s case by taking it from under the rule usually applied to amendments when third parties intervene. We will therefore affirm the judgment and remand the cause, with the directions as to expenses of garnishee contained in the original opinion.
All concur.