A judgment creditor, in effect, is simply enforcing his judgment debtor's cause of action against a third party; it might be said that the judgment creditor, with respect to this third party (the garnishee), does no more than "stand in the shoes" of his judgment debtor, Jacobs v. Colcord, 136 Okla. 158, 275 P. 649, Syl. 2 (1929), or, stated otherwise, in garnishment the judgment debtor's cause against the third party (garnishee), such as it may be, is merely "assigned" to the judgment creditor. Bell-Wayland Co. v. Nixon, 57 Okla. 138, 156 P. 1195, Syl. 1 (1916). If, therefore, the judgment debtor himself would have to contend with a jury in a direct action against this outside party, on the cause of the latter's indebtedness to the judgment debtor, as Vessell would here, there seems no logical reason why the judgment creditor, in merely enforcing his judgment debtor's rights, should not likewise also have to overcome before a similar jury the garnishee's same interposed defenses.
in "the (garnishee's) answer"; and its judgment was invalid and erroneous to that extent; that in so doing, the court determined liability on an insurance contract in which the insurer's obligation to pay such a judgment for its insured was not fixed or unconditional, but was dependent upon the existence of various conditions and the insurer's compliance with a number of contractual provisions set forth in the policy; that by rendering the judgment it did, the court deprived the Company of the opportunity of pleading or proving that such conditions precedent to its enforcement prescribed in the policy itself had not been met or occurred, and which would have precluded any attempted enforcement of the policy by the insured. In support of its position, the Company cites Security Bldg. Loan Ass'n of Oklahoma City v. Ward, 174 Okla. 238, 50 P.2d 651; Maxey Co. v. Crowl, 171 Okla. 337, 41 P.2d 254; Tucker v. Ware, 169 Okla. 401, 37 P.2d 623; Jacobs v. Colcord, 136 Okla. 158, 275 P. 649: Bell-Wayland Co. v. Nixon, 57 Okla. 138, 156 P. 1195; House v. Scanlan, 34 Okla. 796, 127 P. 481; Davis v. Lilly, 17 Okla. 579, 87 P. 302, and London Lancashire Indemnity Co. of America v. Courtney (C.C.A. Okla.) 106 F.2d 277. These cases are cited as authority for the propositions that Steves, the judgment creditor, could acquire no greater rights against the garnishee insurance company than the insured and judgment debtor, Wells, possessed, or could enforce against it; that the liability of the garnishee to the debtor is never presumed but must be proved; and that a judgment, outside or beyond the issues of the case and upon a matter not submitted for determination, is a nullity. We find no fault with the rules laid down in these cases, but in none of them, nor in any other cases that have come to our attention, has the precise question involved here been decided. It is true, as recognized in the Security Bldg. Loan Ass'n of Oklahoma City case, supra, that the liability of an insurance company to its insured can neither be created n
A garnishee upon whose answer an issue is joined is entitled to a jury trial upon the question of his indebtedness to the defendant. Bell-Wayland Co. v. Nixon, 57 Okla. 138, 156 P. 1195. A third party claiming either real or personal property levied upon might be entitled to a jury trial upon the question of his right and title to the property.
Not so. This order was not an appealable order. Bell-Wayland Co. v. Nixon, 57 Okla. 138, 156 P. 1195; Indiahoma Refining Co. v. Kunkler, 66 Okla. 31, 166 P. 894. Plaintiff seeks to distinguish these cases from the case at bar for the reason that in the instant case a trial was had as to the truth of the answer of the garnishee as provided by section 926, C. O. S. 1921.
However, the statute does not stop there, but in order to safeguard the interest of the plaintiff in said action and to avoid the payment of the money by the garnishee to the defendant, it provides a method whereby the plaintiff may protect his right and recover the fund intact; that is, by giving to the defendant a notice of his intention to appeal, and, if he gives that notice, the fund cannot be released until after the expiration of ten days, and when then he perfects his appeal the entire matter is transferred to the court to which said appeal has been taken for adjudication. Brown, the garnishee, was evidently satisfied with the judgment of the county court holding him liable as said garnishee and directing him to pay the money into the court, as from said judgment he did not appeal. This judgment is valid and binding, and the bank has pursued the proper method to enforce the collection thereof. Bell-Wayland Co. Y. Nixon, 57 Okla. 138, 156 P. 1195. It might not be amiss to cite secs. 5466, 5467, R. L. 1910, which prescribe the method of appealing from the justice of the peace court in civil actions. And the statute above quoted plainly provides that an appeal in this character of case may be had by filing an appeal bond as in other cases. This in our judgment, conclusively establishes that this appeal was properly taken.
"An order of the justice of the peace directing a garnishee to pay money into court is not a final judgment from which an appeal will lie by garnishee. It simply gives the creditor the same right to enforce the payment of the money that the debtor previously had." In case of Bell-Wayland Co. v. Nixon, 57 Okla. 138, 156 P. 1195, the court, speaking through C. Hooker, says: "If the rule announced by this court in the Spaulding Case supra, is to be followed, then the only effect of the order made by the justice of the peace directing Nixon to pay the money into court was to transfer the right of Dyer to the plaintiff in error and confer upon the plaintiff in error the same right to enforce the collection of the debt against Nixon that Dyer himself had."
The opinion states the material facts. A. F. L. Norris, for the plaintiff, cited Grindley v. Barker, 1 B. P. 239; Towne v. Jaquith, 6 Mass. 50; Woolsey v. Tompkins, 23 Wend. 324; Caldwell v. Harrison, 11 Ala. 755; Low v. Perkins, 10 Vt. 532; Johnston v. Bingham, 9 W. S. 56; Johnson v. Smith, 21 Conn. 627; Green v. Miller, 6 Johns. 39; R. R. Co. v. Stewart, 25 Iowa 115; Bank v. Beirne, 1 Grat. 226; Bell v. Nixon, 9 Bing. 393; Kupfer v. So. Parish, 12 Mass. 185; First Parish v. Cole, 3 Pick. 232; Copeland v. Ins. Co., 6 Pick. 198; Heard v. March, 12 Cush. 580; Chitty Cont. (11th Am. ed.) 296; Story Agency, s. 42; Jewett v. Alton, 7 N.H. 253; Andover v. Grafton, 7 N.H. 298; Eames v. Eames, 41 N.H. 177. Pike Parsons, for the defendant, cited 2 Kent Com. 293; Green's Brices's Ultra Vires 542; Rex v. Varlo, 1 Cowp. 248; Rex v. Miller, 6 T. R. 268; Ex parte Willcocks, 7 Cow. 402; 1 Dill. Mun. Corp., s. 221; Ang. A. Corp., ss. 502, 503; Cram v. Bangor House, 12 Me. 354; Lockwood v. Mech. Nat. Bank, 9 R. I. 308; Junkins v. School Dist., 39 Me. 220; Kingsbury v. School Dist., 12 Met. 99; Martin v. Lemon, 26 Conn. 192; Wolcott v. Wolcott, 19 Vt. 37, 39; Damon v. Granby, 2 Pick. 345; Keyser v. School Dist., 35 N.H. 477; Edgerly v. Emerson, 23 N.H. 555; Jones v. Andover, 9 Pick. 146; King v. Beeston, 3 T. R. 592.