I concur in the judgment of reversal, but not in the view that a judgment creditor may neglect compliance with the provisions of sections 717 et seq. of the Code of Civil Procedure, merely because a garnishee has denied any indebtedness to the judgment debtor. I think he must still apply for a citation to the garnishee to answer under oath before the court or judge as provided in section 717, and do everything required of him to secure an admission of the indebtedness, for such an admission will entitle him to an order for payment without action — the main object of the summary proceeding prescribed by the statute.
But if he fails to secure such admission, it then becomes the imperative duty of the court or judge to make an order authorizing him to institute an action.
If the court or judge refuses or fails to make such order, the statutory proceedings has failed to afford him relief, and he is remitted to his remedy as it existed before the statute.
In this case it appears from the allegations of the complaint that the plaintiff did everything required of him to secure an order authorizing him to sue, and that it was not granted. It is wholly immaterial that the complaint does not show a specific request for and express denial of such an order. A case was presented which made it the duty of the justice to make the order, but instead of doing so he made a wholly different order — one unwarranted by the facts, and one which he had no power to enforce. This may be regarded as a refusal to make the proper order and allowed the same effect.
The defendants are in no position to complain of this construction, for the order authorizing suit in any case in which the garnishee denies the alleged indebtedness is a mere form. Whether it is granted or denied, a right of action immediately accrues to the judgment creditor — and whether it is in form an action under the statute, or in equity because the statute has failed to afford relief, the issues are precisely the same.
Angellotti, J., concurred. *Page 152