DISSENTING OPINION
Bowen, J.,I cannot agree with the majority opinion in this case. This proceeding was had under §2-4403, Burns’ 1946 Replacement, which statute does not create any substantive rights and merely provides for certain procedures. No restraining order or injunction against the bank was ever obtained by the judgment creditor in this case, and no order was ever issued by any court ordering the bank to hold or apply the debt which it owed to the defendant Good in satisfaction of appellee’s judgment.
The statute, §2-4406, Burns’ 1946 Replacement, provides that upon hearing, the judge of the court may order any property, income, or profits of the judgment debtor, not exempt from execution, in the hands of either himself or any other person, or any debt due to the judgment debtor, to be applied to the satisfaction of the judgment, and to forbid transfers of property and choses of action. No such order was made in this case prior to the time the bank honored the check of defendant Good and paid him the amount of his deposit. The bank violated no restraining order or injunction or any order of the court.
It is a fundamental rule of banking law, that, in the case of general deposits of money in the bank, the moment the money is deposited, the bank and the de*267positor assume the relationship of debtor and creditor. 7 Am. Jur., §444, p. 313; Storen, State Treasurer v. Sexton (1936), 209 Ind. 589, 200 N. E. 251.
The only order served on the defendant bank prior to the time that it paid the amount of the deposit to the debtor defendant Good was as follows:
. . that the defendant Union Bank and Trust Co. has in its possession the following personal property of said defendant Good, to-wit: Savings Account in the approximate amount of $2300.00, which said property is not within any exemption but is subject to execution; that the defendant Good does not have sufficient property subject to execution aside from the property above described to satisfy the execution; that the defendant Good unjustly refuses to apply said assets in the hands of the defendant, Union Bank and Trust Co. to the satisfaction of the execution and judgment, which verified complaint is in the words and figures following, to-wit: (Here insert), it is therefore ordered that said defendant Daniel R. Good and said defendant, Union Bank and Trust Co., be and appear before this court, or the Judge thereof on the 13th day of August, 1948, at 10:00 o’clock A.M. to answer concerning said property.”
Both the court below and the majority opinion affirming such decision proceed upon the apparent theory that the appellant Union Bank and Trust Company actually had money in specie belonging to the defendant Good in its possession, since the court stated in its final judgment that the “following property of the defendant Daniel R. Good in the hands of the defendant Union Bank and Trust Company, to-wit: $2300.00 be delivered to the Clerk of the Cass Circuit Court.
The appellant bank never had any property of the defendant that was capable of delivering in specie. The *268bank- was bound to honor the check of the .defendant Good and if it had failed to do so would have been liable to him in an action to recover such amount.
There is no question but that a bank account or chose of action can be reached in proceedings supplemental to the execution. However, the appellee could have obtained a restraining order or an injunction against the bank from paying said indebtedness to the defendant or to anyone else until the matter could be heard and determined. This she did not do. She could have availed herself of the benefits of the provisions of §18-2001, Burns’ 1950 Replacement. She would have been amply protected under this section.
The actions of the court below, and the majority opinion affirming the same, create a sitüation where a bank is forced to pay the amount of a depositor’s credit twice on the theory, as expressed in the majority opinion, that a lien attached at the time the original service of process and notice on the appellant bank, which notice and order merely directed the bank to appear and answer concerning said deposit. No injunction or restraining order of any character whatsoever was served on the bank at this time. -In my opinion, the lower court and the majority opinion were in error by reason of two basic misconceptions; the first being that the court treats this banking account as tangible property in specie since the court at the time of its final judgment referred to the property as property in specie. The appellant bank never had any property of the defendant that was capable of delivering in specie. In Re Delaney: S. D. Fruit & Produce Co. v. Bank of U. S. (1931), 256 N. Y. 315.
Also, statutory proceedings supplemental to execution operate in rem. Beavans et al. v. Groff (1937), 211 Ind. 85, 5 N. E. 2d 514.
*269This is a proceeding in rem, and the judgment in the court below and the majority opinion affirming the same not only declare a lien on the bank account of the execution defendant, but also, in effect, render a personal judgment against the defendant bank, which, prior to the time such deposit had been paid, had merely been ordered to appear and answer concerning such deposit, and no restraining order or injunction of any nature whatsoever had been entered against the bank in this stage of the proceeding.
The cases set forth in the majority opinion are in the main cases involving the assignments of choses in action to third parties by the execution debtor.
The courts in such cases held that a lien attaches which prevents the execution debtor from transferring such property to third persons. Such a situation does not exist in the instant case, and the fact that a lien in rem may exist against such choses in action belonging to the execution debtor Good in the instant case does not, in my opinion, under the laws of this state establish a lien which may operate as a personal judgment against a bank owing the amount of a deposit to the execution debtor, and such bank, upon paying the amount of such deposit on proper order after merely having received notice that proceedings supplemental to execution had been instituted, should not be required to pay such money twice, which is the effect of the majority opinion.
The majority opinion proceeds upon the theory that an equitable lien attached at the time of service of process on the defendant bank and the order to such bank to answer concerning deposit. This section under which this action was prosecuted, §2-4403, Burns’ 1946 Replacement, merely provides a right to require the defendants to appear and answer concerning certain *270property, which the judgment debtor has or may be entitled to receive, but it does not create a lien in favor of the judgment plaintiff. Section 2-4402 reads as follows: “ . . . and such proceedings, may, thereafter, be had for the application of the property, income, or profits of the judgment debtors toward a satisfaction of the judgment as provided upon the return of an execution.” (My emphasis) Such proceeding thereafter was not had in the instant case prior to the time the bank paid the amount of this deposit to the execution debtor.
It would seem to be elementary justice that the bank in the instant case should not be held liable to the creditor of the defendant debtor until some order or decree is served upon such bank, restraining it from paying the amount of a deposit to one of its depositors, in view of the well established principle of banking law that the obligation of a bank to its depositor is to repay the depositor on a proper demand.
The case of Pouder et al. v. Tate (1892), 132 Ind. 327, 30 N. E. 880, cited in the majority opinion, involves money in specie which was held in custodia legis, and consequently presents an entirely different factual situation from the facts at bar. In my opinion, the judgment of the Miami Circuit Court is contrary to law and should be reversed.
Note. — Reported in 101 N. E. 2d 724.