OPINION DENYING A REHEARING.
A motion for rehearing complains of the failure to decide whether the trial court erred in overruling plaintiff’s exceptions to the garnishee’s answer, and the failure to determine the question of the bank’s liability as garnishee. It is charged in the motion that the court in the opinion made a misstatement of fact as follows:
“Among the specifications of error is one that the court erred in overruling plaintiff’s exceptions to the garnishee’s answer, but this goes out of the case because the plaintiff now admits that the exceptions were not *20overruled or disposed of until thei final judgment, and the evidence upon which the ruling was made has not been brought up.” (Ante, p. 16.)
In reference to this statement, it is said in the motion:
“It is not a true statement, and, therefore I ask this court to correct it, and to pass upon this question. . . . The final judgment in this case was rendered on the 13th day of February, 1918; the court overruled the exceptions to the answer of the garnishee on the 17th day of October, 1917, as will be, shown by the attached certificate of the clerk of the district court of Labette county, Kansas. The abstract of appellant stated that the exceptions were overruled, and also stated what the evidence was on the hearing of such exceptions.”
If the opinion contains any misstatement of fact, counsel for appellant is alone responsible. It was stated in the abstract and repeated at the oral argument that, after hearing the evidence, the trial court overruled the exceptions and rendered a judgment against plaintiff for costs and attorney’s fees in favor of the bank as garnishee; “that thereupon” plaintiff filed its amended petition making- Earl Lemley and the bank additional parties defendant, and asking that the bank be enjoined and restrained from paying any of the -money to the partnership until the further order of the court. There was a statement in the abstract of what the evidence taken on the hearing of the exceptions showed, but the appellees challenged the abstract with a motion to strike it from the files because no transcript of the evidence taken at the hearing had been made. This motion would have been sustained except for the fact that four or five days after the oral argument counsel for plaintiff sent a letter to the clerk calling our attention to the fact that the statement in his abstract to the effect that the court, after hearing the evidence, overruled the exceptions to the garnishee’s answer and rendered a judgment against plaintiff in favor of the garnishee, was an error, “as shown by the records in the office of the clerk of the district court,” and stating;
“I enclose you certificate from-the clerk showing that no judgment was rendered against plaintiff in that proceeding. ... No judgment was ever rendered in this cause except the one on the note sued on by plaintiff. . . . The court at no time discharged the garnishee or rendered any judgment in favor of the garnishee, and I wished the court to know that there was an error in my abstract, which was prepared without looking at the record in the case.”
*21The certificate of the clerk of the district court, which accompanied the letter to the clerk of this court, recites that on July 24, 1917, when the case was commenced, the garnishee summons issued and was served; that on August 20, 1917, plaintiff filed an amended petition making the bank and Earl Lemley additional parties defendant; and that on October 18, 1917, each of them filed a demurrer to the amended petition, which demurrers were sustained. The certificate contains the following statement of the clerk:
“My records do not show the rendition in this case of any judgment except the one rendered on the 13th day of February, 1918, as above stated.”
We naturally assumed that plaintiff, not having procured a transcript of the evidence, realized that his abstract, so far as it related to the evidence, could not stand, and that he did not intend to rely on his assignment of error in respect to the rulings on the exceptions to the garnishee’s answer, and desired to rest his case solely on the proposition that the court erred in sustaining the demurrers to the amended petition. For this reason, after we had decided that the amended petition, being in the nature of a creditor’s bill, could not be maintained, we supposed the decision of that question disposed of the case. If counsel’s statement was true in his letter to the clerk to the effect that “no judgment was ever rendered in this cause except the one on the note . . . The court at no time discharged the garnishee or rendered any judgment in favor of the garnishee,” then it would seem that the plaintiff had nothing to appeal from with respect to the exceptions to the answer of the garnishee. This would be true even if the evidence on the hearing of the exceptions had been preserved.
We are now presented with a later certificate by the same clerk, in which she certifies that her records show that the exceptions to the answer of the garnishee were passed upon and overruled October 18, 1917, which was several months before the final judgment.
It is apparent that counsel attempted to make up a record from his memory, without having preserved the evidence on the hearing of the exceptions, and, as he admits, without consulting the records. As we now understand his contention, it *22is that the garnishee’s answer was not sufficient, although the abstract states that it denied the bank had in its possession or under its control any property of the defendants or either of them; denied it was indebted to the defendants or either of them; and denied that it had any money or property in which the defendants or either of them had any interest. The abstract states that this affidavit was in the form prescribed by section 7125 of the General Statutes of 1915.
The further contention that it was the duty of this court to determine the question of the bank’s liability as garnishee is apparently predicated upon-the theory that there is an abstract which sets out the evidence. Since no transcript was procured, that part of the abstract cannot be considered. Aside from the evidence, however, it is sufficiently shown, and seems not to be disputed, that, while the action was to foreclose a mortgage against J. A. Lemley, the fund attempted to be held by the garnishment proceedings was a deposit in the bank to the credit of the firm of Lemley & Son, a partnership composed of J. A. and Earl Lemley, and that, reduced to its last analysis, the plaintiff’s contention is that the court should have held the fund liable for debts of one of the partners. But the money of a partnership cannot be garnisheed in a suit against one of the partners, for the sufficient reason that the money is not due to the. defendant in the action, but to the firm. (Trickett v. Moore, 34 Kan. 755, 10 Pac. 147.)
It is said in the motion:
“It would be a very great injustice to appellant to have the record in this case show the state of facts set out in the opinion, when such statements are not true. . . . The question of the liability of the garnishee in this case is one of the questions in this case.”
Without conceding that it is, or can become, one of the questions, it is quite apparent that it is not a very serious one.
Rehearing denied.