I concur in the judgment and in all of the opinion of the chief justice, except the part thereof to the effect that where a garnishee, in his answer to the sheriff, admits that he is indebted to the defendant, the service of the garnishee process in such cases interrupts the running of the statute of limitations on the debt, and in fact prevents its again running until the attachment is discharged or the plaintiffs' debt paid. The provision of section 544 of the Code of Civil Procedure, which is said to have this effect, applies alike to cases where the garnishee owes a debt to the defendant and to those where he has in his possession personal property belonging to the defendant. Where the garnishee has property which he admits he holds as custodian of the defendant, the statute of limitations does not run, and cannot begin to run, so long as he admits that he holds as such custodian, nor until in some manner he asserts a claim thereto adverse to the defendant. The admission in the answer to the sheriff in such cases, therefore, would of itself be evidence that the statute had not begun to run. But where a matured debt exists at the time of the service of the garnishee process the statute of limitations has already begun to run against it, and an admission that the debt still exists does not ordinarily stop or interrupt the running of the statute. There are strong grounds for holding that section 544 was not intended to give any greater effect in this respect to an admission contained in an answer to the sheriff on garnishee process than in ordinary cases, and that the full meaning of that section, so far as this point is concerned, is that after the service of garnishee process upon a third person the garnishee, if he keeps the property or does not pay the debt to the sheriff, shall thereafter be liable to the attachment plaintiff in the same manner and to the same extent that he was theretofore liable to the defendant, but no farther, and that *Page 303 this transfer of liability continues, subject to its original limitations and qualifications, until the attachment is discharged or any judgment in the main action in favor of the plaintiff satisfied, in which case the liability to the attachment plaintiff ceases, and the liability to the defendant continues, if not then barred.
As this question is not involved in the case, I do not think any opinion should be expressed concerning it.
Van Dyke, J., and Angellotti, J., concurred in the foregoing.
Rehearing denied.