Apt illustrations of the application of the announcement then made that the statute was designed to safeguard the rights of the attaching creditor are afforded by numerous decisions. ( Obergfell v. Booth, 218 Ill. App. 492; Hudson v. Hudson Mator Co., 238 Ill. App. 391; Burke, forUse of Birney, v. Congress Hotel Co., 280 Ill. App. 493; Prudential Loan Trust Co. v. Metzler, 66 Or. 224 [133 P. 1191]; First Nat. Bank of Brantley v. Standard Chemical Co., 226 Ala. 509 [ 147 So. 682]; Brondum v. Rosenblum, 151 Miss. 91 [ 117 So. 363]; Trottier v. Foley, 42 R.I. 422 [ 108 A. 498].) The foregoing cases recognize and apply the principle that where the garnishee claims a debt due from the debtor as an offset, it must in fact apply such debt on the amount due from it to the debtor. If, instead, it pay the amount to the debtor such payment will be deemed an admission that there was no debt due and its claim of offset will be denied.
Ely v. Flinn, 112 Ala. 311, 20 So. 570; Packard Motors Co. v. Tally, supra; Montgomery Candy Co. v. Wertheimer-Swarts Shoe Co., 2 Ala. App. 403, 57 So. 54. The date of the service of garnishment determines the right to set-off in garnishment proceedings. Self v. Kirkland, 24 Ala. 275; First Nat. Bank v. Minge, 186 Ala. 405, 64 So. 957. The garnishee waived its right to set off its asserted debt. 28 C. J. 283; Prudential L. T. Co. v. Merchants' Nat. Bank, 66 Or. 224, 133 P. 1191; Trottier v. Foley, 42 R.I. 422, 108 A. 498; Paisley v. Park F. S. Co., 222 Ill. App. 96; Hudson v. Hudson Motor Co., 238 Ill. App. 391; Dinkins v. Crunden, 99 Mo. App. 310, 73 S.W. 246; Baird v. Luse-Stevenson Co., 262 Ill. App. 547; Jax I. C. S. Co. v. So. Fla. Farms Co., 91 Fla. 593, 109 So. 212, 48 A.L.R. 957. A. G. Seay, of Troy, and Powell Hamilton, of Greenville, for appellee.
" The judgment was reversed. Plaintiffs cite a number of cases: Wilcus v. Kling, 87 Ill. 107; Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96; Hudson v. Hudson Motor Co. of Illinois, 238 Ill. App. 391; Harris v. Montag, 247 Ill. App. 89, and Baird v. Luce-Stevenson Co., 262 Ill. App. 547. We have given careful consideration to each of these cases and without attempting to discuss them in detail we think no one of the cases is applicable. Practically all of them rely upon Wilcus v. Kling, supra.
The court sustained the judgment, holding that "the payment of money by the garnishee to his employee judgment debtor between the time of the service of the summons upon him as garnishee and the filing of his answer in the garnishment proceeding, is an admission of indebtedness to the employee by said garnishee," citing and discussing both Wilcus v. Kling, 87 Ill. 107, and Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96. In Hudson v. Hudson Motor Co., 238 Ill. App. 391, judgment was obtained against Thomas J. Hudson for $622.30. Garnishment summons was served on the Hudson Motor Co., April 20, 1922. The answer of the garnishee, filed May 16, 1922, showed "no funds."
" In Hudson for use of Topp v. Hudson Motor Co., 238 Ill. App. 391, a case decided by another division of this court, the holdings in the Wilcus and Paisley cases, supra, were followed, the court saying (p. 394): "Under section 13, ch. 62, of the Garnishment Act, . . . the garnishee had the right, upon service of garnishment process, to deduct from Hudson's salary, as it was or came due, what he owed, but it could not refrain from adjusting the account and go on paying his salary for years, and so, simply by so doing, evade and avoid its statutory obligation."
Such charges, therefore, cannot be regarded otherwise than in the light of voluntary payments towards Montag's commissions in disregard of appellant's statutory obligation to withhold such payments after garnishment and before answer. (Paisley for use of Hooper v. Park Fireproof Storage Co., 222 Ill. App. 96; Hudson for use of Topp v. Hudson Motor Co. of Illinois, 238 Ill. App. 391. ) As there is nothing in the evidence that warrants treating these payments either as advancements or a set-off the garnishee must be held to have recognized them as an indebtedness at the time they were charged to the commission account.