delivered the following response to the petition for ■rehearing:
The argument in support of the petition for rehearing proceeds upon a misconception of the points really decided in the opinion.
The court did not decide, that upon the failure of a garnishee to appear and disclose the amount of his indebtedness, and proof thereupon made of its amount, it would be error to *179apply the attached debt in payment of the judgment or debt sued on, without a separate suit against the garnishee; or, in other words, that no final order could be made against the garnishee, applying the debt in his hands, without suit against him. No such doctrine is intimated in the opinion.
On the contrary it is expressly decided that, in the case stated, the court may make orders against the garnishee, but only such orders as are authorized by section 246. It may ord.er the payment of the amount owing by the garnishee into court, or into the hands of a receiver; or the garnishee may be allowed to retain the amount due on the terms therein prescribed. Where does the court get the power to do more than one or the other of these three things ? And is not the power of the court to make such orders, and to compel the garnishee to obey them, as potent and effectual a remedy as the plaintiff would have a right to ask? If he preferred a different form of relief he should have adopted a different form of remedy. The law provided two other very plain remedies, by resorting to either of which he would have entitled himself to just such a judgment as was erroneously given in this proceeding. (Sections 474, 248.) But he chose to adopt the proceeding authorized by section 476, and now complains that that proceeding was not precisely adapted, in all its details, to his case, and therefore insists that the court had a right to transcend its legal powers so as to give him relief in a more appropriate form.
We concur with the counsel, that the Code does not require the plaintiff to institute a regular action against a garnishee, where he had truly disclosed the debt, or where the amount of the debt had been proved. In either of these cases he may be proceeded against as provided in section 246, but in no other zoay, unless the plaintiff should desire to obtain the judgment as authorized by section 248, and to obtain that he must do what that section requires.
It is insisted that when the case — as in this instance — is ready for a final order applying the attached funds to the plaintiff’s debt or judgment, when the garnishee makes the disclosure, or the amount of his indebtedness is proved, there is no necessity for the provisional orders required by section 246, *180and that the attached funds should at once be disposed of by final order as provided in section 250. But what sort of final order does that section provide ? Does it provide for a judgment in favor of the plaintiff against the garnishee for the amount of his indebtedness ? Certainly not. That section provides, that where judgment is rendered for the plaintiff the court shall apply, in satisfaction thereof, “the proceeds of the debts and funds attached in the hands of the garnishees,” clearly implying that the proceeds shall have been placed under the control of the court by some one of the provisional orders prescribed in section 246.
The sum of the whole matter is this.,: Where the garnishee has been summoned, and appears, and discloses the amount of his indebtedness to the defendant, or where he makes default by failing to appear, and the court, as it may do, hears proof as to the amount of his indebtedness, he may be ordered to pay the amount into court, or to a receiver, or may be allowed to retain it on the terms fixed by law. The court may make either of' these orders, at its discretion, and as the circumstances of the case may render most appropriate, and may by its process, of rule and attachment, compel the garnishee to obey and perform its mandate as in other like cases. If, at the time the garnishee so discloses, or the amount of his in-' debtedness is so proved, there is a judgment against the defendant to which the indebtedness can be immediately applied, the appropriate order would be to require the garnishee to pay the fund into court, and when paid the proceeds applied as directed in section 250.
Whether the orders authorized by section 246 are to be considered as so far final as to preclude the garnishee from showing cause against their enforcement, is a point which the case did not present, 'and which was not decided in the opinion. Nor does the opinion decide or intimate, as counsel suppose, that these orders were intended as a sort of double warning to the garnishee ; and it may be admitted that there is no analogy to be found in the Code for such double warning. But where, we ask, is there any analogy to be found in the whole Code, or in any other system of jurisprudence, for a final *181judgment, as in an ordinary action, against a person who was not sued, who was not a party to the action, and against whom there was neither allegation nor prayer for relief?
It is essential to the consistent and harmonious working of the system of practice which the Civil Code embodies, that its forms and modes of procedure — especially those which regulate what are called provisional remedies — should be strictly conformed to. A general attachment, for instance, can be obtained only by a strict compliance with the conditions upon which the law gives that particular form of remedy. The omission of any one of the prescribed conditions will be fatal to the proceeding. The court does not stop to inquire whether the variance between the facts sworn to by the plaintiff in his affidavit, and those required to be sworn to, is material, or is injurious to the adverse party, but the question is, is there a variance ? If so, the proceeding will be pronounced defective. It is not necessary to refer to the numerous cases showing the degree of strictness required in conforming to the terms upon which this special proceeding is allowed. Can any reason be shown for not requiring something like the same strictness of conformity to the rules which prescribe the mode and measure of relief to be granted under this special proceeding? Shall the courts, by construction, abrogate the distinctions which the law has wisely established between the responsibilities of a mere garnishee, in a special proceeding, and those of a defendant in an action?
The law provides that a garnishee shall incur certain responsibilities, which are to be enforced in a certain and well defined mode. Why not adhere to this mode ? What apology can there be for utterly disregarding these plain provisions of the law, by sanctioning a form of judgment against a garnishee to which a defendant in an action can alone be subjected ?