Rehearing denied February 13, 1918.
Petition fob Reheabing.
Department 1.
Me. Justice Habéisdelivered the opinion of the court.
The learning displayed by the attorneys for the appellant in their petition for a rehearing and the earnestness with which they have urged their contentions, the new arguments advanced, the amount involved in the controversy and the importance of the questions litigated, all combine to demand further discussion of what was treated in the original opinion as the crucial question presented by the appeal. It is true that the record does not affirmatively show that the sheriff did not demand payment of the debt due from the Monarch Lumber Company of Oregon before levying upon its property; but it is also true that the record does not affirmatively show that the sheriff did demand payment of the debt. The return made by the sheriff on the writ of execution shows that he complied with every requirement of the statutes, except making a demand upon the Monarch Lumber Company of Oregon for payment of the amount of its debt to one of the judgment debtors, the Monarch Transportation Company. The entire judgment-roll in the action prosecuted by Spencer together with the writ of execution and the sheriff’s return, the order confirming the sale, the sheriff’s certificate of sale and the as*357signments of it, and the sheriff’s deed, were all introduced in evidence by the plaintiff, and an examination of the record will disclose that not only the return made upon the writ of execution but also the entire record is silent upon the subject of whether a demand' was made upon the Monarch Lumber Company of Oregon for payment of its debt before a levy was made by the sheriff upon its property, although all the details of the act of making the levy as well as of the sale of the property fully appear in the record. The respondents gave ample notice in their printed brief that they would insist that the sale was void because no demand had been made upon the Monarch Lumber Company of Oregon. It is not now and never has been contended that a demand was in fact made, although it is now argued by the petitioner that, since there is no evidence affirmatively showing a failure to make a demand, the presumption is that the sheriff performed his duty by demanding payment from the Monarch Lumber Company of Oregon. It was not intended to announce in the original opinion that the evidence affirmatively disclosed that a demand was not made and any language which directly or indirectly suggests that the evidence affirmatively proves a failure to make a demand, is inapt, because as already stated the record is merely silent upon the subject. However, the conclusion reached in the original opinion was predicated upon the theory that the making of a demand was mandatory and not merely directory, that it was a jurisdictional prerequisite, and that unless it affirmatively appeared upon the record that the sheriff had first demanded that the Monarch Lumber Company of Oregon pay its debt, a levy upon and sale of the company’s property was utterly void.
*358The appellant'insists that the court had authority to render a judgment against the Monarch Lumber Company of Oregon. We have again examined the question from every angle and carefully considered every argument advanced by the appellant, but we come to the same conclusion that was reached in the original opinion. Every section of the Code which can in any wise be applicable to any phase of the question is a component part of the Civil Code which was adopted in 1862 as framed by the Code commissioners. The Code was written as an harmonious whole and it was not the work of persons writing at different times or at cross-purposes. Examining this Code as an harmonious whole it will be seen that nowhere has it in terms conferred authority for rendering a judgment against a .garnished third person when the attaching plaintiff is satisfied with the third person’s certificate that he owes a matured debt to a defendant in the action. Not only does the Code fail to confer the authority in express terms but every implication to be derived from the language found in it persistently points to a withholding rather than a granting of the authority. Express provision is made for a judgment against a garnishee who refuses to give a certificate or who gives an unsatisfactory certificate, and the very fact that such authority is expressly given in these two specified instances is by implication a withholding of authority to enter a judgment against a garnished person who satisfactorily certifies that he owes a matured debt to a defendant in the action. Provision is not only made for a judgment against a garnishee who refuses to make a certificate or who gives an unsatisfactory one, but express provision is also made for the issuance of an execution upon that judgment “as upon ordinary judgments between *359plaintiff and defendant”: Section 321, L. 0. L. There is no provision whatever for an .execution against a garnished person who stands in the position of the Monarch Lumber Company of Oregon and hence to reach a matured debt owing from such garnished person, one mnst look elsewhere to see whether any provision has been made.
10. There are three kinds of executions: “one against the property of the judgment debtor,” another against his person, and the third for the delivery of specific property or damages for withholding it: Section 214, L. O. L. The plaintiff in the action can have an execution issued by the clerk “against the property of the judgment debtor” and “it shall contain the name of the court, the names of the parties to the action, and the title thereof; it shall substantially describe the judgment.” The writ of execution is then delivered to the sheriff who executes it in the manner provided by Sections 233 and 234; but it must be borne in mind that the writ with which the sheriff is armed is a writ of execution “against the property of the judgment debtor,” in the action. If it appears from the certificate of the garnished third person that he is owing a matured debt to the judgment debtor in the action, then the sheriff who is armed with this writ of execution “against the property of the judgment debtor,” if such debt is not paid on demand, mnst levy on the property of the garnished third person, in all respects as if the execution was against the property of such third person: Section 234, L. O. L. The sheriff is not. directed to look to a judgment against the third person to discover whether the latter owes a defendant in the action, but the officer is required to look to the certificate. There is no provision for a writ of execution against the property of a garnished third per*360son who has satisfactorily certified that he owes a matured debt to a defendant in the action but the only provision made by the Code is a writ of execution against the property of the judgment debtor in the action and this writ is executed just as if it were against the property of the garnished third person. The very form of the writ precludes all notion of a judgment against the garnished third person. The fact that provision is expressly made for a judgment against a garnished person who gives an unsatisfactory certificate or refuses to give any certificate and no express provision is made for a judgment against a third person who satisfactorily certifies that he owes a matured debt to a defendant in the action; the fact that express provision is made for the issuance of a writ of execution on an expressly authorized judgment against a garnishee and no other express provision is made for a writ of execution to enforce collection from a garnished person except the general provision for the issuance of a writ of execution against the property of the judgment debtor in an action; the fact that the writ of execution mentioned in Sections 233 and 234, L. O. L., runs against the property of the judgment debtor in the action and must contain the information specified by Section 215, L. O. L.; the fact that there is nowhere any provision for an execution against the property of a third person in the situation of the Monarch Lumber Company of Oregon; and the fact that Section 234, L. O. L., directs the sheriff to look to the certificate of the third person instead of a judgment against such third person to see whether that third person owes the judgment debtor against whose property the writ runs, are facts which, when viewed separately are very persuasive, but when combined and considered together lead with almost ir*361resistible force to tbe conclusion that tbe Code does not contemplate the entry of a judgment against a third person in the situation of the Monarch Lumber Company of Oregon.
11. There is yet another circumstance that is highly significant. It is true that by the terms of Section 301, L. O. L., a garnished third person is from the time of the service of a copy of the writ and notice, liable to the plaintiff until the attachment be discharged or the judgment be satisfied, but it is also true that this service of the writ and notice does not confer jurisdiction over the person of a garnishee so as to authorize the entry of a judgment against such garnishee, because the order prescribed in Section 303, L. O. L., must be obtained and served before the court acquires jurisdiction to render a judgment against a garnishee who either refuses to give a certificate or gives an unsatisfactory certificate: Carter v. Koshland, 12 Or. 492, 497 (8 Pac. 556); McLaughlin v. Aumsville Merc. Co., 74 Or. 80, 89 (144 Pac. 1154); Smith v. Conrad, 23 Or. 206, 212 (31 Pac. 398). To require the service of the order prescribed by Section 303, L. O. L., as a jurisdictional prerequisite is to require ridiculous and wasteful excess, if it can be said that service of a notice of garnishment and a copy of the writ of attachment confers jurisdiction over the person of the garnishee so as to authorize a judgment against him. If service of the writ and notice confers jurisdiction, then service of the order specified by Section 303, L. O. L., would not make more complete what was already complete.
12. The appellant invokes the aid of Section 983, L. O. L., and argues that this section of the Code authorizes a judgment against the Monarch Lumber Company of Oregon. This section only applies where jurisdiction is conferred on a court or judicial officer. The *362section cannot itself be the source of jurisdiction, for it is only available to carry jurisdiction into effect after jurisdiction has first been conferred by the Constitution or some statute. There is no statute expressly authorizing a judgment against a person in the position of the Monarch Lumber Company of Oregon and every implication to be derived from the several statutes points to the conclusion that the Code does not contemplate the entry of such a judgment. If a judgment is to be entered, why is there no provision for an execution against the property of the third person? “The course of proceeding,” to use the language of Section 983, L. O. L., is “specifically pointed out by this Code,” for in the plainest terms it provides for an execution against the property of the judgment debtor in the action, and then, if the debt due from the garnished third person is not paid upon demand, the sheriff can, on the authority of this writ, levy upon the property of that person in all respects as if the execution were against his property. The language of Section 234, L. O. L., is unequivocal; it construes itself.
13. In the original opinion it is said that
“the demand prescribed' by Section 234, L. 0. L., performs the duty of a judgment, and therefore as against the third person the demand should be held to be just as essential as a judgment is as against the defendant.”
We did not decide and do not now determine whether the statute is constitutional, but the quoted language was employed solely for the purpose of emphasizing the necessity of making a demand. If it be suggested by the appellant that to take the property of the Monarch Lumber Company of Oregon without a judgment against it is to take its property without due process of law then, since there is no authority for a judgment, the levy and sale were necessarily void, even though *363it be assumed that the levy was preceded by a demand for payment of the debt. But assuming, without deciding, that the procedure affords due process of law, it can readily be seen that, if there is no authority for a judgment against the garnished person, the demand is an indispensable prerequisite.
14-16. The appellant places much reliance upon the order of the Circuit Court confirming the sale. If the statute authorized the entry of a judgment against a person in the position of the Monarch Lumber Company of Oregon and made provision for the issuance of an execution on that judgment, then cases like Bank of Colfax v. Richardson, 34 Or. 518 (54 Pac. 359, 75 Am. St. Rep. 664), and Voorhees v. Jackson, 35 U. S. (10 Pet.) 449 (9 L. Ed. 490) might be apropos. The Circuit Court is a superior court of record and it is true that when a judgment of such a court relating to a matter falling within the general scope of its powers is produced, the judgment generally proves itself and in the absence of affirmative evidence to the contrary, jurisdiction will usually be presumed; but, on the other hand, if in rendering the judgment the court was not proceeding according to the course of the common law, as where it was exercising special powers not brought into action according to the course of the common law, jurisdiction will not be presumed, but must be made affirmatively to appear on the face of the record. This doctrine is expressly recognized in Bank of Colfax v. Richardson, 34 Or. 518 (54 Pac. 359, 75 Am. St. Rep. 664), and has been applied in Willamette Real Estate Co. v. Hendrix, 28 Or. 485, 494 (42 Pac. 514, 52 Am. St. Rep. 800); Mertens v. Northern State Bank, 68 Or. 273 (135 Pac. 885). As stated by appellant in his petition for a rehearing, “the statute in regard to garnishment is anomalous..” In the instant case there *364was no authority for a judgment against the Monarch Lumber Company of Oregon and hence the attempted judgment was a nullity and in contemplation of law there was no judgment at all. The only judgment provided for by statute is the judgment against the defendants in the action. The only writ provided for is a writ of execution against the property of the judgment debtor and it is this writ that serves as the sheriff’s authority to levy upon the property of the garnished person.
17. The Monarch Transportation Company is at once the judgment debtor of Spencer, and the creditor of the Monarch Lumber Company of Oregon. The Monarch Transportation Company could not, without a judgment against its debtor, the Monarch Lumber Company of Oregon, compel the payment of the debt due from the latter to the former; and yet Section 234, L. O. L., contemplates that Spencer can compel the payment of that debt, even though neither Spencer nor the Monarch Transportation Company has a judgment against the Monarch Lumber Company of Oregon. In other words, the statute enables Spencer to accomplish without a judgment against the Monarch Lumber Company of Oregon what could only be accomplished by the Monarch Transportation Company with a judgment. The authority to seize the property of the Monarch Lumber Company of Oregon could have been brought into existence only by first mating a demand upon the Monarch Lumber Company of Oregon to pay its debt, and since the record does not affirmatively show that the authority was brought into existence, the levy and sale were void. While we neither decide nor intimate that the statute is unconstitutional, yet if it is defective or invalid the remedy is with the legis*365lature and not with the courts. The petition for a rehearing is denied. Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Benson, and Mr. Justice Burnett concur.