Atlantic and Pacific Railroad Company v. Hopkins/Opinion of the Court

The Supreme Court of Kansas, since the order complained of in this case was made, has decided that an order in a proceeding in aid of execution, under sect. 490 of the Civil Code of that State, directing a garnishee to pay to the judgment creditor money which he owed the judgment debtor, was not a judgment, and did not determine finally the liability of the garnishee. The language of the opinion is as follows:--

'The making of it [such an order] is not an adjudication between the parties. It does not determine thier ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater rights than the debtor had, and the garnishee loses no rights. And the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action.' Board of Education v. Scoville, 13 Kan. 32.

In a previous case, Arthur v. Hale, 6 id. 165, it was held to be error to award execution against a garnishee to collect the money in case he failed to make payment according to the order. As the practice in the courts of the United States must conform as near as may be to that in the courts of the State, Rev. Stat., sect. 914, these decisions construing the practice acts of the State are binding upon the courts of the United States. It follows that the Circuit Court erred in directing that execution might issue in this case against the garnishee if payment should not be made according to the order. To that extent the order of the Circuit Court is reversed, but in all other respects affirmed; the defendant in error to pay the costs in this court.

Cause remanded, with directions to modify the order complained of by striking out all that part thereof which directs that execution may issue.