Dissenting Opinion.
Coffey, J.— I regret my inability to concur in the opinion in this case. As I am unable to do so, it is but fair to my associates, as well as those interested in the case, that I should give the reasons for my dissent.
Section 931, R. S. 1881, provides that “ If at the time an order of attachment issues, or at any time before or afterward, the plaintiff, or other person in his behalf, shall file with the clerk an affidavit that he has good reason to believe that any person, naming him, has property of the defendant of any description in his possession, or under his control, which the sheriff can not attach by virtue of such order; or that such person is indebted to the defendant, or has the control or agency of any property, moneys, credits, or effects; or that the defendant has any shares or interest in the stock of any association or corporation, — the clerk shall issue a summons notifying such person, corporation or association to appear at the ensuing term of the court, and answer as garnishee in the action.”
Section 939, R. S. 1881, provides that “A garnishee in attachment shall not be compelled in any case to pay or perform any contract in any other manner, or at any other time, *52than he would be bound to do for the defendant in attachment.”
The affidavit for a writ of garnishment in this case is in the usual form, no charge of fraud.or intimation of fraud on the part of the garnishee being found therein. Had the property, formerly owned by the attachment defendant, been found in his hands I have no doubt that an issue might have been framed involving his right to hold it, including an issue as to whether its transfer was fraudulent or otherwise.
But no property was found in his hands. It had been sold, and the court held him liable for the proceeds, on the ground that the transfer to him by the attachment defendant was made with the intent to cheat and defraud creditors. This finding and judgment was wholly outside of any issue between him and the plaintiff in the attachment. If this is the correct mode of procedure, then I submit that any one who purchases property may, at any time within six years after such purchase, be proceeded against by way of garnishment, and without any intimation or notice that he is charged with fraud, until such charge is developed by the'evidence, be held for the proceeds of such property, and required to turn them over to the attachment plaintiff.
The authorities relied upon to sustain such a result are, 2 Wade Attachments, section 327; Waples Attachment, p. 215; Gutterson v. Morse, 58 N. H. 529; Proctor v. Lane, 62 N. H. 457, and Risser v. Rathburn, 32 N. W. Rep. 198. What is said by Wade on Attachments, supra, is based upon the case of Fearey v. Cummings, 41 Mich. 376, and Clark v. Brown, 14 Mass. 271. The case of Fearey v. Cummings, supra, rests upon a peculiar statute of the State of Michigan (section 6498), which gives the attachment plaintiff the right to question the good faith of a chattel mortgage executed to a garnishee.
In the case of Clark v. Brown, supra, no question of fraud was involved.
What is said in Waples on Attachment, supra, is based *53wholly upon the case of Gutterson v. Morse, supra. Gutterson v. Morse, supra, rests upon the peculiarity of the statutes of New Hampshire. In that State the person who would be a garnishee in this State is treated as a trustee, and the proceeding against him corresponds more nearly to a creditor’s bill than it does to our attachment proceedings. Proctor v. Lane, supra, rests upon the same statute.
Filed May 24, 1892.In the case of Risser v. Rathburn, supra, there was a direct issue of fraud made and tried. There was also a finding by the jury, in answer to interrogatories, that the .garnishee was indebted to the attachment defendant in the sum of $488.26 on an agreement to pay the difference between the invoice of certain goods and a debt due from the attachment defendant to the garnishee.
In my opinion these authorities do not fully support the conclusion reached in this ease. It must be constantly borne in mind that an attachment proceeding is a stranger to the common law. It exists only by statute, and while a statute may be framed so as to authorize a judgment like the one rendered in this case, in my opinion, our statute does not authorize it.
That the funds in question could have been reached by the creditors of the attachment defendant, in a suit for that purpose, where proper issues involving the question of fraud could have been framed and tried, is too well settled to need argument. Phelps v. Smith, 116 Ind. 387; Goldman v. Biddle, 118 Ind. 492.
In my opinion this is the only mode by which they could have been reached, inasmuch as the garnishee, under our statute, is treated as a mere stake-holder.