OPINION ON REHEARING.
The opinion of the court was delivered by
Cuniííngham, J. :Upon the petition of the defendant in error the court ordered a rehearing of this case, and, upon very careful consideration of briefs filed and argument made upon such rehearing-, we think there was no error in the former'judgment. We are more than ever convinced that the proceeding- was substantially a garnishment of effects in the hands of the executors; but whether this be true or not, still, defendant in error should not have prevailed, at least in this" form of an action, 'because of the statute of limitations. An extended, elaborate and ingenious argument is made to the effect that proceedings in garnishment under our statute are but another form of a creditor’s bill, and, as the general rule is that in such actions the period of limitation does not commence to run until judgment is obtained against the *593principal defendant, that being the time when the right of action accrues, therefore, in this case, the defendant in error had two years from the time their notes matured in which to bring the action. The premises are not warranted by the facts.
Neither garnishment nor attachment proceedings under our statute are a creditor’s bill. In such actions, using the language of this court in Tennent v. Battey, 18 Kan. 824, page 330 :
“The only right the plaintiffs have under the attachment is to use such measures as may be necessary to preserve this security until they can reduce their claim to judgment. They have no right to harass other parties with litigation that may prove fruitless, in trying to remove obstructions to the sale of the property, until they have .first obtained the right to have a sale of the property made. When that right has been definitely settled, their lien having been preserved intact, they can then commence actions to remove obstructions in the way of their execution. But until this is done, they have no right to interfere with the claims of third parties.”
More than this, the defendant in error, by adopting the procedure he did, certainly shut himself out from the benefits accorded those who pursue the well-beaten and clearly defined path of accreditor’s bill. The only relief he sought against the plaintiff in error, John H. Nelson, was that the conveyances made to him by Mrs. Davis be set aside, and, as a corollary, that the property held by him thereunder be subjected to the payment of his claim against Mrs. Davis. Now, even as to the fraudulent conveyance of the real estate, this was not an action “for the recovery of real property” (Main v. Payne, 17 Kan. 608), and hence falls specifically within the limitation found in the fourth specification of the third clause of section 18 of the code of civil procedure (Gen. Stat. 1901, §4446). If we *594should grant what the defendant in error so strenuously and ingeniously claims, that the garnishment law amounts to, and really is, a substitute for the equitable proceeding in the nature of a creditor’s bill, still we must be bound by the plain provisions of the statute of limitations in the bringing of such proceedings. If Stull’s action against John H. Nelson was not an action to recover real estate, which it was not, and if it was for relief on the ground of fraud, which, as developed by the .evidence, it was, then it was barred, whether it be called a proceeding under the garnishment law, in aid of execution, or by creditor’s bill. Viewed simply as an attachment, probably the same could be' said of it, for an attachment might have been brought before Stull’s notes became due. The remedy provided in such cases in sections 230 and 231 of the code of civil procedure (Gen. Stat. 1901, §§4677, 4678) is a right which a creditor has when he has made the showing as therein required, and not simply a matter of grace springing from the discretion of the court or judge.
By waiving the question, we do not wish to be understood as consenting to the proposition insisted upon by the defendant in error, that' the proceeding by garnishment, as now found in our statute, is a substitute, or in any fair sense an equivalent, for that by a creditor’s bill. (
Even in a case where a creditor’s bill was resorted to, it has been held that the limitation act hereinbefore cited barred the action. (Gillespie v. Cooper, 36 Neb. 775, 55 N. W. 302.) The citation of this case does not necessarily appi'ove its doctrine.
The former judgment of this court will be affirmed.
All the Justices concurring. Bu.rch, J., not sitting, having been of counsel.