The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-06-17
l.. s. FEARING !

T. L. SHoFNER.
From the Circuit Court of Kinds Coun-
ty, cd District.) I. J. Wharton,
Judge.
Ganishment indebtedness Of ga,nishee
accrueing after Gnsrer .fted. Code N
PAP 2445 construed.
COOPER, c. j..
In February, 1888, ". T. Ratlif' was,
by the Chancery CourAOf Kinds county.
appointed commissioner to sell certain
lands for partition, under bill filed for
that purpose by one of the tenants in
common. The sale was made, and
reported to the court at the August term.
1888. Objection was made to its cOnfir
nation, aud the objection was sustained,
and a new sale ordered, from which
decree the purchaser appealed to this
court. While the appeal was pending,
Shofner sued out a writ of attachment
against George NJ. Klein, one of the
c0-tenants, and garnished the commits
sioner At the February term, 1884, of
the Circuit Court of Kinds county, to
which the writ was returnable, the COM
missioner answered, stating the facts in
Indebtedness to the defendant at that
time. No order was made discharging
the garnishee. The result of the appeal
to this court was the confirmation of the
sale, upon certain conditions. These
ordering the commissioner to distribute
conditions being complied with, a
decree was entered in the Chan
Gerry Court, the proceeds of the sale.
Thereupon, Fearing, the appellant,
another creditor of Klein, sued out an
attachment, and garnished the com
missioner. At the July term, 1884, of
the Circuit Court, the garnishee filed an
amended answer in the matter of the
Shofner garnishment, in which he set
up the new facts and the second garnish-
ment by Fearing. The court directed
that the fund be paid to Shofner, from
which judgment Fearing appealed.
Under CodeS 2442, a plaintiff in attach
ment may subject to his debt any indebt-
edness of the garnishee existing at the
time of the service Of the writ, or after that
time and before the day at which he is re-
quired to answer. The plaintiff cannot,
by continuing the cause, acquire the
right to recover against the garnishee
for matters arising afterwards. The
rights and liabilities of the parties
are to be tested by the condition of
things when the answer is or should be
filed. If the garnishee admits an in
debtedness not then due, judgment may
be taken with a stay of execution. under
Z 2445, but this provision is not applicable
to the present case. Until confirmation
of the sale, the fund held by the COM
missioner was the property of the pur-
chaser, and Klein had no interest in it.
The fund was not garpjshable until after
confirmation and the fact that Shofner's
suit remained pending in court until
after this confirmation, gave him no
right to subject it. After the order of
confirmation, Klein had an interest in
the fund, and the right to demand its
immediate payment by the commission
err, and thereupon it became garnishable
Appellee, having no right to subject the
fund, has no interest in the question as
to whether appellant owns the claim
asserted by him against Klein. That
was a defence to be insisted on by the
debtor. Jones q. Noofy, 50 Miss. Re
rersed and judgment for appellant entered
here
Shelton & Crutcher, for appellant
+. E. Baldwin, for appellee.