(concurring). This is an appeal from an order vacating a judgment against the garnishee and permitting it to serve an answer. On March 17th judgment was given against the defendant for $1,048.75. On March 27, 1915, judgment was given against -the garnishee for $1,044.25, reciting that it appeared that the garnishee was indebted to the defendant in that sum. The judgment was obtained by the mistake and inadvertence of the cashier of the garnishee, and by his trusting the counsel for plaintiff. The garnishee summons was served February 24, 1915. On March 3d Lyman Miller, attorney for plaintiff, wrote the bank that as he understood the bank had money ■of defendant and intended to admit the same. He inclosed the draft ■of an affidavit of disclosure, which he invited the bank cashier to sign, saying it would relieve the bank from further proceedings and place the matter with the plaintiff and the defendant. So, it appears that, relying on the kind advice of counsel for the plaintiff, the bank cashier made the disclosure as requested. Yet at the time of making the same fhe bank had been notified that a third party claimed the money. The garnishee innocently supposed that the parties would take no .advantage of him through the snaps of the law, and that counsel for plaintiff and defendant and the court would probably dispose of the money; and so on a phone from the attorney for plaintiff the money was paid into court on March 27, 1915. The third party demands -that the bank pay the same money to him, and so the bank was between the Devil and the deep sea, and the court very properly vacated the judgment against the garnishee, and permitted the plaintiff and the third party to fight out their claims for the money.
If perchance the third party owns the money, would it be proper to make the bank pay it a second time, because it was misled by the .smoothness of the plaintiff’s counsel? Would that not be the same as ■simple robbery ? It is certain that, at the time of taking the judgment .against the garnishee, the attorney for the plaintiff had positive notice ■of the third-party claim, which was represented by Engerud, Holt, & *270Frame. He knew tkat tke gamisb.ee could not safely pay tbe money on bis judgment, and that tbe garnishee bad been misled by bim. Under tbe facts disclosed, there was no legal or moral justification for taking-a judgment against tbe garnishee, or for taking tbe money of the-garnishee in satisfaction of tbe judgment against tbe defendant. The-order of tbe county court is well approved, and it should be affirmed, except that neither tbe plaintiff nor bis attorney should have $25, or any sum, as costs on tbe motion.