GARNISHMENT. A warning to any one for his appearance, in a cause in which he is not a party, for the Information of the court and explaining a cause. Cowell.
Now generally used of the process of at taching money or goods due a defendant in the hands of a third party. The person in whose hands such effects are attached is the garnishee, because he is garnished, or warn ed, not to deliver them to the defendant, but to answer the plaintiff's suit. The use of the form "garnishee" as a verb is a prevalent corruption in this country.
It is attachment in the hands of a third person, and so is a species of seizure by no tice; Beamer v. Winter, 41 Kan. 297, 21 Pac. 251; id., 41 Kan. 596, 21 Pac. 1078.
For example, when a writ of attachment issues against a debtor, in order to secure to the plaintiff a claim due by a third person to such, debtor, it is served on such third per son, which notice or service is a garnishment, and he is called the garnishee.
There are garnishees also in the action of detinue. They are persons against whom process is awarded, at the prayer of the de fendant, to warn them to come in and inter plead with the plaintiff ; but in detinue, the defendant cannot have a ad. fa. to garnish a third person unless he confess the posses sion of the chattel or thing demanded. And when the garnishee comes in, he cannot vary or depart from the allegation of the defend ant in his prayer of garnishment. The plain tiff does not declare de novo against the gar nishee ; but the garnishee, if he appears in due time, may have over of the original dec laration to which he pleads.
See Brooks, Abr. Detinue.
The process of garnishment is directly founded upon the writ of attachment as by custom of London, as to the history and char acter of which see ATTACHMENT.
This writ reached the effects of the defendant in the hands of third persons. Its effect is simply to arrest the payment of a debt due the defendant, to him, and to compel its payment to the plaintiff, or else to reach personal property in the hands of a third person. It is known in England and in most of the states of the United States as garnishment, or the garnishee process ; but in some, as the trus tee process and factorizing, with the same charac teristics. As affects the garnishees, it is in reality a suit by the defendant in the plaintiff's name ; Moors v. Stainton, 22 Ala. 831; Tunstall v. Worth ington, Hempst. 662, Fed. Cas. No. 14,239.
Garnishment is an effectual attachment of the defendant's effects in the garnishee's hands ; Kennedy v. Brent, 6 Cra. (U. S.) 187,
3 L. Ed. 194; Blaisdell v. Ladd, 14 N. H. 129 ; Tillinghast's Ex'rs v. Johnson, 5 Ala. 514; Bryan v. Lashley, 13 Smedes & M. (Miss.) 284; Hacker v. Stevens, 4 McLean 535, Fed. Cas. No. 5,887; Beamer v. Winter, 41 Kan. 297, 21 Pac. 251; id., 41 Kan. 596, 21 Pac. 1078. It is essentially a legal remedy ; and through it equities cannot be settled between the de fendant and the garnishee ; Harris v. Miller, 71 Ala. 26 ; Hoyt v. Swift, 13 Vt. 129, 37 Am. Dec. 586; Webster v. Steele, 75 Ill. 544; Per ry v. Thornton, 7 R., I. 15; Massachusetts Nat. Bank v. Bullock, 120 Mass. 86; Sheedy v. Bank, 62 Mo. 17, 21 Am. Rep. 407. The plaintiff, through it, acquires no greater rights against the garnishee than the defend ant has, except in cases of fraud ; and he can hold the garnishee only so long as he has, in the attachment suit, a right to enforce his claim against the defendant ; Price v. Hig gins, 1 Litt. (Ky.) 274; Harris v. Ins. Co., 35' Conn. 310; Waldron v. Wilcox, 13 R. I. 518 ; Richardson v. Lester, 83 Ill. 55. No judg ment can be rendered against the garnishee until judgment against the defendant shall have been recovered ; Housmans v. Heilbron, 23 Ga. 186; Washburn v. Mining Co., 41 Vt. 50.
The basis of a garnishee's liability is either an indebtedness to the defendant, or the pos session of personal property of the defendant capable of being seized and sold under exe cution: Maine Fire & Marine Ins. Co. v. Weeks, 7 Mass. 438 ; Rundlet v. Jordan, 3 Greenl. (Me.) 47; Haven v. Wentworth, 2 N. H. 93 ; Hutchins v. Hawley, 9 Vt. 295; Welke v. McGehee, 11 Ala. 273. And to be a subject of garnishment, the claim must be one for which the principal defendant can maintain an action at law, if due at the time or to be come due thereafter ; Farwell v. Chambers, 62 Mich. 316, 28 N. W. 859 ; Edney v. Willis, 23 Neb. 56, 36 N. W. 300. The existence of such indebtedness, or the possession of such property, must be shown affirmatively, either by the garnishee's answer or by evidence ali unde; Porter v. Stevens, 9 Cush. (Mass.) 530; Lomerson v. Huffman, 25 N. J. L. 625 ; Camer on v. Boyle, 2 G. Greene (Ia.) 154 ; Hunt v. Coon, 9 Ind. 537 ; Reagan v. R. R., 21 Mo. 30. The demand of the defendant against the garnishee, which will justify a judgment in favor of the plaintiff against the garnishee, must be such as would sustain an action of debt, or indebitatua assumpait; Hall v. Ma gee, 27 Ala. 414.