#### TANEY, Respondent, *v.*VOLLENWEIDER, Appellant.

(No. 1,561.)

(Submitted May 1, 1903.

Decided May 4, 1903.)

*Garnishment*— Payment *Into Court by Garnishee*— Effect *of Judgment*— Justice *of the Peace*— Change *of Venue*— Statu*tory Provision*— Costs.

1. Where a garnishee paid into court, in answer to garnishment served upon her, the lull amount of her indebtedness to the defendant in the proceedings, the judgment recovered therein against him operated to fully discharge the garnishee’s indebtedness.

2. Where defendant, on being granted a change of venue, refused to pay the accrued costs as provided by Code of Civil Procedure, Section 1484, it was the duty of the justice of the peace to proceed with the trial.

*Appeal from District Court■, Deer Lodge County; Welling Napton, Judge.*

Action by P. S. T'aney against Mary Vollenweider. Erom a judgment for plaintiff, and from, an order denying a new trial, defendant appeals.

Reversed.

*Messrs. Duffy & Casey,*for Appellant.

Under Section 900, C'ode of Givil„Procedure, it was made the duty of this appellant to pay the money into the justice’s court as soon as she was served with garnishee process; it was also, under Section 1682, C'ode of Civil Procedure, the duty of the justice of the peace to receive the money. The garnishee and appellant in this action, should be protected from' double liability. (Drake on Attachment, 6th E'd., Secs. 693, 699, 701, 706 and 710; *Marden*v. *Wheelock,*1 Mont. 52; *Dole*v. *Bout-well,*1 Allen, 286; *Barrow*v. *West,*23' Pick. 270'; *Foster*v. *Jones,*15 Mass. 185; *Holmes*v. *Bemsen,*4 Johns. Ch. 46; *B. & O. By. Co>.*v. *May,*25 Ohio St. 347; *Johnson*v. *Carey,*2 Cal. 34; *Sessions*v. *Stephens,*46 Am. D'ec. -339.)

*148*Messrs. Walsh <&*James, for Respondent

Tbe justice of tbe peace acted witbout jurisdiction in entering judgment, and the same is absolutely void. *(State ex rel. Kenr ■ yon*v. *Laurandeau,*53 Pac. 536.)

MR. JUSTICE! HOLLOWAY

delivered tbe opinion of tbe court

Tbis action was commenced in tbe district court by tbe plaintiff to recover tbe sum of $45 and to establish and foreclose a mechanic’s- lien upon certain property in Anaconda, Montana. Tbe complaint is in the usual form-. Tbe denials in tbe answer raise no material issues. As an affirmative defense tbe defendant alleges tbat after she became indebted to tbis plaintiff, and before tbe commencement of tbis action, sbe was served with a writ of attachment and notice of garnishment in an action in the justice of tbe peace court of O. H. Williams, a justice of tbe peace of Anaconda township*, wherein Frank Hall was plaintiff and tbis plaintiff, P. S'. Taney, was defendant; tbat a judgment was recovered by Hall against T'aney for $45.50; that an execution was issued tbereon, a copy of wbicb, with notice of garnishment, was also served on tbis defendant; and tbat by reason of these facts, and tbe demand of tbe constable, she paid into that court tbe sum’ of $45, being tbe whole of her indebtedness to this plaintiff. A reply was filed, wbicb assumes to put in issue the allegations of this affirmative defense. Upon the trial the defendant admitted that tbe plaintiff bad performed tbe work for her as alleged in bis complaint. Tbe plaintiff then offered in evidence tbe record of tbe county clerk’s office showing tbe filing of bis lien, and then rested. The defendant offered in evidence tbe records of tbe justice of the peace court showing the proceedings had in tbe case of Hall against Taney from tbe commencement of tbe action to the entry of judgment, all substantially as alleged in her answer. Sbe also introduced in evidence the receipt for the money paid into* court by her. No rebuttal testimony was offered whatever, *149and upon this record tbe district court found in favor of the plaintiff; and entered a money judgment for $45 and for costs, amounting to $6, and for $50' attorney’s fees. No finding whatever was made with reference to the lien claimed by the plaintiff, and no provision is made in the judgment for the foreclosure of such lien. From this judgment, and an order denying defendant’s motion for a new trial, she appeals.

If, at the conclusion of plaintiff’s testimony, no further evidence had been offered, a *prima facie*case would have been made out in plaintiff’s favor for the amount of his claim. However, the defendant offered in evidence record proof of the fact that she had paid into court, in answer to garnishment served upon her, $45, the full amount of her indebtedness to plaintiff; that such notice of garnishment had been served upon her before the commencement of this present action; and that a judgment was recovered in the justice of the peace1 court against this plaintiff. Nlo attempt was made to dispute these facts, and upon this showing we deem them proved. This defendant having paid into the justice of the peace court the full amount of her indebtedness to this plaintiff upon the garnishment served upon her, and a judgment having been'obtained against this plaintiff in that court, that judgment operated to fully discharge the indebtedness from this defendant to the plaintiff herein, and she was, therefore, entitled to a judgment in her favor for costs. We do not understand how the district court can enter up a judgment, including attorney’s fees, upon an open account for work and labor done and for material furnished; in the absence of any finding that (plaintiff isi entitled to a lien (assuming that, in the event a lien was established, an attorney’s fee might be recovered as a part of the costs). It appears from the record of the justice of the peace court that after defendant, Taney, appeared in that action, he moved for a change of venue, which was granted upbn the condition that he pay, the accrued costs, as provided by Section 1484 of the Code of Civil Procedure. This he refused to do; and the justice proceeded to try the cause, and entered judgment against him. It is now urged here that *150be did so without jurisdiction, and that tbe judgment was, therefore, void. This was doubtless' the theory upon which the disc trict court proceeded in this causa in finding, for the plaintiff. It would be an anomalous position, indeed, for a party to ast-sume to say that he moved for a change of venuei, and refused to pay the fees required as a condition precedent to the justice’s transmitting the [papers to another court, and then insist that the court of primary jurisdiction could not act further in the premises. We do not understand that a party by his wrongful act can secure such an advantageous position. Upon the refusal of Taney to pay the accrued costs as required by law, it was the duty of the justice of the peace to proceed with the trial. How1ever, we cannot say that the testimony" introduced upon the trial of this cause was all that might be produced upon a new trial thereof. It is therefore ordered that the'judgment and order appealed from be reversed, with directions to- the district court to grant the defendant herein a new trial.

*Reversed and remanded.*