
    (Second Circuit — Franklin Co., O., Circuit Court —
    Jan. Term, 1895.) .
    Before Stewart, Shauok and Shearer, JJ.
    Hammock v. Bank.
    1. A petition in error by the garnishee will not lie to review the order of a justice to the peace, requiring the garnishee to pay into court money of the defendant in attachment.
    2. The remedy of the garnishee, in such case, is to refuse to comply with the order and have his rights adjudicated in a civil action under section 5551 of the Revised Statutes.
    Error to the Court of Common Pleas of Franklin County.
    Hammock brought an action before J. C. Gallagher, a justice of the peace, against Charles H. Moore & Co., to recover the sum of $234.60, with interest, and caused process in garnishment to issue against the Commercial National Bank of Columbus, requiring it to appear and answer concerning moneys, etc., of said Charles H. Moore & Co., alleged to be in its hands.
    
      Upon the examination of the cashier of the bank, the bank made a motion to be discharged, which motion the justice overruled, and ordered the bank to pay the money into court, to which ruling and order the bank excepted, and filed its petition in error in the court of common pleas against the plaintiff in attachment, seeking a reversal of the order of the justice.
    Thereupon Hammock moved to dismiss the proceeding in error on the grounds, among others, that the court of common pleas had no jurisdiction of the subject matter, and that the order of the justice was not a final order.
    The court overruled this motion and, upon hearing, reversed the order of the justice, and discharged the garnishee.
    By this proceeding the plaintiff in error seeks to reverse the judgment of the court of common pleas.
   Shearer, J.

In many states of the Union the garnishee is made a party to an attachment action, and a final judgment, in such cases, may be rendered against him.

But this is not so in Ohio. In this state the garnishee is in no sense a party to such suit, nor is an order made requiring him to pay money into court a final judgment or order which can be reviewed on error.

So in this case, the bank was not a party to the action before the magistrate. It had no day in court. It was not concluded by the order of the justice to pay in the money. The order was not an adjudication between the plaintiff in attachment and the garnishee. Their rights wei’e not determined thereby, and the remedy of the garnishee was not by proceedings in error to reverse the order; but, if it considered itself aggrieved, it should have refused to comply with the order, and had its rights adjudicated in a civil action at the suit of the plaintiff in attachment. Revised Statutes, sec. 5551. The final judgment in such action would, of course, be reviewable on error. These views are sustained by Secor v. Witter, 39 Ohio St. 218.

J. J. Grosbie, for plaintiff in error.

F. F. D. Albert/, for defendant in error.

It follows.that the court of common pleas had no jurisdiction of the proceding in error, and should have sustained the motion to dismiss it; and for that reason the judgment will be reversed, the motion sustained, and the petition in error in the court below dismissed. The costs of this proceeding will be adjudged agaist the defendant in error, and the cause remanded.  