Decided October 6, 1908.
On Petition for Rehearing.
Opinion by
Mr. Chief Justice Bean.9. Defendant garnishee stoutly insists that the court erred in directing a verdict against it, for the reason that there was no proof, on the trial, that plaintiff had commenced an action against Porter, Jones & Test, or that a writ of attachment had issued in such action and been served upon it. In a separate defense, set up in its answer to plaintiff’s allegations, defendant avers that the right, claimed by it,, to set off the notes of the indi*330vidual members of the firm of Porter, Jones & Test against the amount due from it to the firm was exercised, and such notes canceled and delivered to the makers, and payment thereof duly ratified by them, “prior to the date of the service of the notice of garnishment on said bank, and prior to the commencement of the said action by the plaintiff against said firm, as mentioned and set out in plaintiff’s allegations,” which would probably be considered, after verdict, as an admission that such action had been commenced and a writ of attachment duly issued and served.
' However that may be, the record is, as noted in the original opinion, that plaintiff on the trial made formal offer of the proceedings and record in the main action, but upon defendant’s objection the court declined to admit them in evidence. The trial, however, proceeded, and at the close of plaintiff’s testimony defendant moved for a nonsuit, on grounds not necessary to state here, but not including a failure of proof in the particular mentioned. The motion was overruled, and defendant then gave evidence tending to support the averments of its answer, and at the close of all the testimony the court, on motion of- plaintiff, directed a verdict in its favor, for the reason that defendant had failed to show any authority from the partnership of Porter, Jones & Test to pay or apply the funds of the firm to the individual indebtedness of its members. To this ruling defendant excepted, and from the judgment rendered on the verdict it appeals, bringing up only the transcript in the garnishee proceedings, and no.part .of the record in the main action. It now insists that the verdict and judgment for plaintiff cannot stand, because there was no proof of an action by plaintiff against Porter, Jones & Test to support the proceedings against it as garnishee. No such question or objection was made in the court below, but defendant permitted the action to proceed to final determination without raising the question, so *331far as the record discloses, that such proof had not been made. No motion for nonsuit was made on that ground, nor was the objection taken at any stage of the trial.
There are many authorities, some of which are cited in the original opinion, holding that proceedings against a garnishee are merely auxiliary to the action in which the writ of attachment was issued, and the court will take judicial knowledge of such action and the record therein without proof. And as the proceedings against the defendant could not have been maintained without evidence, within the judicial knowledge of tlje court or by proof of the main action, we are bound to assume that the court below followed the rule announced in the authorities referred to and held, that it would take judicial notice of the record in such action without proof. Otherwise it would not have permitted the action to proceed against the garnishee or directed a verdict for plaintiff. This view is confirmed by remarks of the court in ruling on the admission of the judgment in evidence.
10. The defendant having, by its objection to the admission in evidence of the record in the main action, thus invited the court to assume the attitude suggested, it is precluded from assailing the ruling, even if erroneous.
11. And as appellant does not bring, as a part of the transcript, such record, we are unable to determine whether the conclusion of the court as to the validity of the proceedings therein, is sound.
The other questions referred to in the petition for rehearing were all carefully examined, and are fully covered by the opinion heretofore filed.
Petition for rehearing denied.
Affirmed: Rehearing Denied.