*50On Rehearing.
ST. PAUL, J.In the ease first named plaintiff took judgment by default against defendant for $56,517.04 as in rem upon an attachment against an absent and unrepresented defendant, and service was made upon a curator ad hoc. The Black River Lumber Company was made garnishee, and, having .failed to answer the interrogatories within the time prescribed by law, judgment went against it for the full amount of the claim against defendant.
From this judgment the garnishee appealed, alleging that the judgment against the defendant was a nullity, and consequently the judgment against the garnishee fell with it; the alleged ground of nullity being that the defendant was not unrepresented, but on the contrary had an agent within the state on whom process could be served.
Since the rendition of first judgment herein, the Concordia Land & Timber Company has appeared in this court admitting the claim of the plaintiff against it and praying that the judgment be affirmed.
This disposes of the judgment against the Concordia Land & Timber Company, since the garnishee has no other interest in that judgment than to see that it is protected in its payment (if any it owes) by a valid judgment against the defendant. See Hanna’s Syndics v. Lauring, 10 Mart. (O. S.) 568, 13 Am. Dec. 339; Kimball v. Plant, 14 La. 511.
The garnishee must therefore confine itself to such issues as concern it directly, and these are set up in an action to annul the judgment against itself under the title herein above secondly set forth, in which it appeals from a judgment dismissing its demand.
I.
The ground on which the garnishee seeks to annul the judgment against it is that it was misled by counsel for the bank into delaying its answer to the interrogatories, and that it owes the defendant nothing.
■ Briefly stated, the facts are these: The garnishee, a nonresident corporation, was served with the interrogatories through its resident agent on March 12, 1921; the agent sent the interrogatories to the president of tne company at Madison, Wis.; the latter was absent and did not receive them until March 25th, being more than 10 days after service. He sent them at once to the company’s attorney at Chicago, who wrote to the attorney for plaintiff on March 28th, and again on April 13th, asking for a delay of 30 days from March 28th in which to answer: To these letters he received .no answer, and April 27th he telegraphed his local manager to see the attorney and arrange for the delay. The attorney was out of town that day, but the manager met him casually on April 30th, when he stated that he was unwilling to grant any further delay, but would see him later. By some misunderstanding the parties did not meet again that day; but on May 3d the manager received another telegram from the attorney and on that day saw the attorney.
It may be observed here that up to this time the attorney might have taken judgment against the garnishee at any time, but in point of fact he had not done so.
It is at this interview of May 3d that the garnishee’s manager claims to have been misled. As to this interview Mr. Murch, the manager, testified:
“He (Mr. Bullis, the attorney) said that 30 or 40 days had elapsed since the time specified in which to file answer, and there was not a thing in the world to stop him from taking judgment. He said it was a case which had given him a good deal of thought and worry, and he had talked it over with the young lady there, who was present at that time, I think his stenographer, and he jokingly remarked: ‘Suppose we leave it to her.’ Mr. Bullis said, calling her by name: ‘What will we do? ’ She said: T don’t think it would be right 1o take *52judgment.’ Mr. Bullis said: ‘Mr. Murch, what would you do if you were in my place; there is between $20,000 and $30,000 fee for me in this case if I collect it.’ I told him not to ask ine what I would do; if he asked me what the Black River Lumber Company would do, I would answer that they would certainly grant the extension. He said he had no right to grant an extension; that he had been engaged by the National Park Bank to collect this money, and he did not see that he had any right to do anything but go ahead and take judgment. I told him, if he felt that way, why not leave it up to the National Park Bank. Mr. Bullis said: T have decided to do that.’ Then I said, ‘I will wire my people that he is going to leave' this up to the National Park Bank whether an extension is granted or not;’ and he said, ‘Yes.’ * * * If Mr. Bullis hadn’t told me he was going to leave it up to the National Park Bank to decide, I would at once have called on a local attorney and had him file some sort of an answer to protect our rights in the matter, so that it wouldn’t go by default.”
And within an hour afterwards Murch telegraphed his attorney at Chicago:
“Bullis does not feel like granting extension. Papers all ready to take judgment; has agreed to leave it up to National Park Bank whether he shall do so or not.”
Miss Corinne Wade, stenographer and secretary to Mr. Bullis, testified as follows:
“Well, Mr. Bullis said: ‘I leave it to my secretary.’ ' And I said it would be very cruel. * * * Question: Before he left the office did not Mr. Bullis say that he would leave it to the National Park Bank? Answer: No; he said this, before he would leave anything to them, he said: ‘What would you do if you were in my place? ’ Mr. Murch said: ‘My company would not take money like that.’ And Mr. Bullis just laughed, and I laughed, and Mr. Bullis said: ‘Well, I will leave it to my company.’ * * * He was talking about the money; he was not talking about the judgment. * * * Mr. Murch said: ‘My company would not take the money like this.’ And Mr. Bullis said: ‘Well, I will leave it up to my company whether they will take it.’ ”
The witness further testified that, as Mr. Murch left the office, Mr. Bullis followed him to the door and said to him, “Tell those Chicago attorneys that I won’t give them any extension at all.”
Mr. Bullis, attorney for plaintiff, testified:
“ * * * He then repeated his statement that his Chicago attorney had instructed him to see me regarding an extension of time to answer the interrogatories, and we had quite a little discussion of the matter. In the course of the conversation I stated that I had been greatly troubled by my ethical position in the matter, because I thought the Black River Lumber Company owed the Concordia Land & Timber Company considerable, but didn’t think that they owed the full amount of the debt of the National Park Bank, which I was suing for, and I hadn’t been quite clear as to whether it was ethical to take the money under those circumstances. I had asked Mr. Murch what he would do, and he stated that that was not a fair question, because he was an officer and stockholder of the Black River Lumber Company, but he stated to me that his company would not take money under such circumstances. I rather jokingly replied that I did not know whether my company would take the money or not. Mr. Murch then stated that I should let my company say whether they would or not. I told him that I thought that was right, and that I would do that. I told him that I didn’t see any reason why I should be bothering my head whether to take money which the law allowed, and I would let my client say whether they would take the money or not. All of this had reference to my possible ethical position in the matter. * * * There was no thought in my mind whatever that I was making any agreement regarding this case, or that Mr. Murch was asking me to make any agreement along the lines we had discussed; the discussion being solely as to my possible position. When Mr. Murch asked me what he should telegraph his Chicago attorneys, I told him: ‘Tell your Chicago attorneys that I will not grant any delay whatever in taking judgment.’ I had opened the door for Mr. Murch, and was standing with my hand on the knob of the door, and Mr. Murch had already passed out, but was standing within five feet of me. Mr. Murch made some noncommittal reply, or I am not sure that he made any reply at all, and went on; and I have had no further discussion with him since then.”
On rebuttal Mr. Murch said:
“I went there to get an extension of time in which to answer the interrogatories. * * * After I got all through, Mr. Bullis told me that he would leave it up to the National Park Bank and let them decide. And I said, T will so wire my people,’ and he said, ‘Yes.’ That was *53the last thing that transpired in Mr. Bullis’ office.”
II.
As the district judge says in his opinion that the witnesses are all “presumably of equal credibility,” and he has nb abiding conviction that Murch did not testify truthfully or that Bullis and Miss Wade testified falsely, we have no reason to doubt that Mr. Bullis did make the remark as Mr. Murch was leaving the door, “Tell your Chicago attorneys that I will not grant any delay in taking judgment,” or, “Tell those Chicago attorneys that I won’t give them any extension at all.”
On the other hand, we are bound to believe either that Murch did not hear the remark, or that the hearing of it did not produce any impression on his mind different from that which he already had, and which he communicated- at once to his attorney, to wit, that, whilst Bullis himself would grant no extension, yet he would leave it to the Park Bank to decide. For that remark was only emphasizing what had already been said about Bullis’ unwillingness to gq-ant any extension on his own behalf, and contained nothing whatever to indicate that Bullis no longer intended to submit to the Park Bank for decision the matter which he had said he would refer to them, whatever that was. If Bullis intended to change his mind on that subject, he should have made it clear to Murch. But there is no pretense whatever that Bullis did change his mind in that respect, for his position was then, and is now, that the question which he intended to submit to the bank was, not whether an extension could be granted in which to file answers, but whether the bank would take the money after he had taken judgment against the garnishee.
III.
So that the question ultimately resolves itself into this, whether Murch mistook Bullis’ meaning through mere carelessness and inadvertence, or had reasonable grounds for believing that the question of extending the time for answering would be submitted to the Park Bank.
Now it will be remembered that Murch had no purpose in going to Bullis, except to obtain an extension of time in which to answer. And to Murch, a layman, the difference between taking judgment, and taking the money after judgment could not have been very clear or very important. Nor could any such difference have been very clear or very important to the lady stenographer when the matter was submitted (jocularly) to her, and when she replied that “it would be very cruel.” For the last question and answer on her direct examination were as follows:
“Do you know of any conversation that took place regarding taking, money under the judgment, or anything of that sort? Answer: You mean while Mr. Murch was there. I don’t know1 anything about money while I was there.”
So that to Miss Wade, who doubtless did not mean to contradict herself, taking the money and taking the judgment meant much the same thing.
Nor does Mr. Bullis in his own testimony say that he made it clear that he intended first to take judgment and then submit to his client the question whether they would take the money. He simply said that he thought it was right to submit to his client the question whether they would take the money.
But we have quoted the testimony quite fully, and we feel that Mr. Murch was not acting carelessly and might reasonably have been led to believe from what occurred that the question which Mr. Bullis meant to submit to the bank was whether or not the garnishee would be granted an extension of time in which to answer; this notwithstanding that Bullis had in mind to submit to the bank only the question whether it *55would take the money realized on the judgment.
IV.
On receipt of the telegram' sent by Murch, as aforesaid, on May 3d, the attorneys for the garnishee communicated at once with the bank, and the latter telegraphed Bullís on May 4th to extend time to answer until May 31st provided it did not prejudice plaintiff’s rights. To which Bullís replied on the same day that he had already taken judgment, but could annul it and grant a new trial if so instructed by the bank. On the next day the bank wired not, to cancel the judgment, but merely refrain from pressing for payment until further advised.
But no further action appears to have been taken, and this suit to annul the judgment followed.
V.
We are of opinion that under the circumstances stated Mr. Murch was misled, not by any carelessness or inadvertence on his own part, but by the failure of the attorney for the bank to make clear his intention to take judgment at once and submit to his client only the question of whether the lat-' ter would take the money realized on the judgment thus taken. Had this been made clear to Murch, he still had the opportunity to answer (Proseus v. Mason, 12 La. 16), and this opportunity was lost when he relied upon the question of an extension of time being submitted to the bank.
VI.
For the rest the garnishee shows that it is not without a defense with some appearance, at least, of merit against any claim- which the Concordia Land Company may have against it, and which it should have an opportunity to present in the proper way.
On the other hand, those issues cannot be passed upon in this action of nullity. In the first place, no such prayer is contained in the petition, which asks only that the judgment be set aside and the garnishee be given an opportunity to answer. In the next place, the judgment against the garnishee must stand until set aside, and hence the correctness thereof cannot be inquired into in the same proceeding in which the nullity thereof is urged. To do so would be to cumulate in one and the same proceeding an action to annul the judgment with an action to review the correctness thereof in a method unknown to the law, and before a tribunal not authorized to review the correctness of its own final judgments. The examination into the merits of a final judgment cannot be had until that judgment be set aside.
Decree.
It is therefore ordered that the judgments appealed from be so amended that the judgment in favor of the National Park Bank and against the Concordia Land & Timber Company be affirmed; and that the judgment in favor of the National Park Bank against the Black River Lumber Company, garnishee, be annulled, avoided, and set aside.
It is further ordered that the Black River Lumber Company be given 10 days from the filing of this decree in the court below in which to answer the interrogatories propounded to it as garnishee; that the National Park Bank pay the costs of both courts in the matter of Black River Lumber Co. v. National Park Bank; and that the Concordia Land & Timber Company pay the costs of both courts in the matter of National Park Bank v. Concordia Land & Timber Company.