In the case of Davis v. McFall, 168 S.W. 453, cited by us in the original opinion, the replevy bond therein expressly stated the funds did not belong to McFall, but belonged to another and the court there held estoppel applied. Under the statute the owner or the defendant in the original suit, may replevy the fund. He does so because he is entitled to the same. He can thereby obtain the possession and use thereof. It is insisted here that the defendant who replevies can make any defense the garnishee could make. If the garnishee had answered that he was indebted to the defendant Franklin, it would not be contended, we apprehend, he could, contrary to his answer, show he was not so indebted. Franklin, in this case, stepped into the shoes of the garnishees, and by his replevy bond states the garnishees are indebted to him, and in the face of such bond he seeks to show that the garnishees are not so indebted. This inconsistent position courts condemn and will not permit, but hold that the party so replevying is estopped from asserting that he is not the owner by giving his bond in order to obtain a release of the levy.
Appellees further, in their motion for new trial, suggest that this court was guilty of an inconsistency in the opinion. In our statement of the case we stated Puckett answered that his firm was indebted to Franklin and Hill, and in the latter part of the opinion we say that he, Puckett, shows by his answer that he was indebted to Franklin. Puckett tells on what debt he is obligated. Franklin, by his replevy bond, says this debt is his. It may have been, when originally contracted, Franklin and Hill's debt; but Franklin got the right to collect it as his individual debt by virtue of his replevy bond. Therefore the answer of Puckett simply makes his firm liable to Franklin, and he would, as a member of that firm, be responsible to Franklin for the amount, and collection from him personally can be enforced.
The judgment disposing of the costs, caused to be entered by this court herein, is regarded by us as just and fair. We do not feel disposed to certify this question. In the three cases cited by us writs of error were denied in each of the three cases, and if there is any question settled in this state we regard the one presented in this case as being finally settled by the Supreme Court. Having final jurisdiction in this case, we do not regard it as mandatory upon us to certify because of the dissent of one of the members of this court. Railway Co. v. Dalton, 177 S.W. 556, and authorities cited.
The motion for new trial and to certify overruled.