
    CHARLES C. BRYAN vs. LANGDON C. DUNCAN.
    Attachment and Garnishment ; Duty oe Garnishee Pending-Appeal.
    Where on the quashing of a writ of attachment and garnishment an appeal is taken, the duty of the garnishee is to retain the money in his hands pending the appeal, whether a supersedeas bond be filed or not.
    At Law.
    No. 26,843.
    Decided December 5, 1890.
    The Chief Justice and Justices James and Montgomery sitting.
    Appeal by plaintiff from an order of the special term denying a motion for judgment of condemnation of a writ of attachment and garnishment.
    
      Reversed.
    
    The pacts are stated in the opinion.
    Messrs. F. P. B. Sands and M. F. Morris for plaintiff:
    The statutes requiring bail in error seem to be confined to cases where judgment is given for plaintiff and not to-apply to judgments for defendants below. 5 East, 545 ; 10' East, 2. It being held that a person who is plaintiff both below and above need not give bail in error. Freeman vs. Groom, 1 Dowling & Ryland, 184.
    As respects the garnishee there is, under the statute, a right and responsibility apart from the main case, to wit, 1st, the absolute right of the plaintiff, upon fulfilling every prerequisite of the statute, to hold the credits attached in the hands of the garnishee by this writ until the final judgment for or against it in the main case against the defendant therein, and the garnishee is amenable for contempt if he does not so hold it. Waples’ Attachment, 10, 291, 294; Drake on Attachment, Secs. 453, 459, 460, 674, 691; and, 2d, the responsibility of the garnishee under the writ (entirely apart from and independent of the rights, &.C., of the defendant) to satisfy any judgment for plaintiff in the main case to the extent of the credits admitted by his return; and no supersedeas bond was requisite to hold the lien of the attachment and to maintain the strict impartiality of the stakeholder pending the appeal taken. Harrison vs. Drader, 29 Ark., 85, Secs. 669, 674, 691; Drake on Attachment; Hecker vs. Stevens, 4 McLean, 535; 24 Miss., 638.
    The plaintiff’s bond on attachment, under this statute, runs to the final judgment on the main case, Drake, Sec. 152; and the defendant being a non-resident, the writ holds his goods and credits in garnishee’s hands until that .issue in the the main case is determined; and where a motion to quash made at defendant’s instance only, and allowed, was appealed from, even the defendant could not release goods, credits, &c., without himself filing the bond required by the statute (Rev. Stat. D. C., Sec., 784), much less could the garnishee, after his return, do so voluntarily.
    He must not fail to hold the fund until dispossessed by the order of the court addressed to him, since the writ runs in its force, and for its effect relates to the final judgment of the main case; and he is powerless to act touching the disposition of the goods. Freeman on Judgments, Sec. 216; Phelan vs. San Francisco, 9 Cal., 588; Waples on Attachment, 8, 10, 11; Danforth vs. Carter, 4 Iowa, 237 ; Danforth vs. Burke, 11, 20, 550 ; Drake on Attachment, Secs. 222, 428, 676a; Kennedy vs. Brent, 6 Or., 187; Sherrod vs. Davis, 17 Ala., 312.
    If he departs from his simple line of duty without process or order of the court addressed to him, he does so at his own risk, and this is specially the case where the writ issues on affidavit of non-residence of defendant. Aldrich vs. Woodcock, 10 N. H., 99; Huntington vs. Risden, 42 Iowa, 517 ; Waples on Attachment, Secs. 265, 291, 295, 208; Drake on Attachment, Secs. 451, 451c, 452, 453, 459, 669, 674, 691.
    The record shows no order or process under which the garnishee could terminate his holding under the writ as custodian of the property pending the appeal from the order made. Sherrod vs. Davis, 17 Ala., 212; Waples on Attachment, 295, 343-4.
    Mr. Andrew Wylie for defendant (appellee).
    The dissolution of an attachment necessarily discharges the lien from the effects on which it was levied, and if the plaintiff intended to prosecute his appeal it was obligatory upon him to give the undertaking as required. Drake on Attachment, Secs. 411, 459«.
    A judgment defendant is entitled to the release of his property immediately, unless, there has been an appeal granted or a writ of error sued out operating as a supersedeas. Waples on Attachment and Garnishment, 438.
    When the garnishment has been dissolved and the plaintiff has appealed, and the defendant sued the garnishee for what was attached in the latter’s hands, the court will not order a stay of proceedings in suit, to await the result of the appeal in the attachment suit, for should there be a judgment the garnishee’s payment thereon would protect him from the garnishment though the previous decree dissolving it should afterwards be reversed. Montgomery Gas Light Co. vs. Merrick, 61 Ala., 534.
    Whatever dissolves the attachment annuls the garnishment ab initio, and no lien exists by reason of the summons of the garnishee, his affirmative answer, and even the order of the court decreeing he is liable under his answer. Waples on Attachment and Garnishment, pages 592-596; Greene Bro. vs. Austin, 10 R. I., 311; Greene Bro. vs. Tripp, 11 R. I., 424; Danforth vs. Carter, 4 Iowa, 237, 280; Harrow vs. Lyons, 3 G. Greene, 157; Brown vs. Harris, 2 G. Greene, 505.
    If an attachment be dissolved on any ground; if the plaintiff takes a personal judgment, it is an abandonment of the attachment, and the judgment stands as though no attachment proceedings had been commenced. Lowry vs. McGee, 75 Ind., 508 ; Waples on Attachment and Garnishment, 581.
    A personal judgment is a dissolution of the attachment. Higgins vs. Grace, 59 Md., 365.
    The subsequent attachments by plaintiff was a waiver of the first attachment. Erwin vs. Com. RR. Bank, 48 Am. Dec., 447; Purdee vs. Cock, 18 La. An., 484.
    Prom the number of affidavits filed in this suit against that of the plaintiff and his supporting witness, it must be very apparent that the defendant is not a non-resident, and the only judgment that can be rendered against him is a personal judgment. If a plaintiff makes an affidavit that the defendant in attachment is a non-resident when the contrary is the fact, and proceeds to give publication notice and prosecutes the case to judgment, the whole proceeding is a nullity. Waples on Attachment and Garnishment, page 352.
    In Maryland, it is the right of the garnishee not only to contest, at any stage of the proceeding, the jurisdiction of the court over the defendant, because of the insufficiency of the affidavit, but to dispute the truth of the ground upon which the attachment issued, and even to take advantage of irregularities in the proceedings against the defendant. Shrives vs. Wilson, 5 H. & J., 130: Yeely vs. Lackland, 6 Ibid, 446; Barr vs. Perry, 3 Gill, 313; Stone vs. Magruder, 10 G. & J., 383; Clark vs. Meixsell, 29 Md., 221.
   Mr. Justice Montgomery

delivered the opinion of the Court:

The plaintiff appeals from an order of the court below denying his motion for judgment of condemnation of credits in the hands of Robert A. Hooe. The following are the material facts :

April 10, 1886, plaintiff began suit against defendant Duncan;to recover upon two promissory notes.

At the same date he sued out a writ of attachment and garnishment with interrogatories addressed to Mr. Hooe. April 13, 1886, a motion to quash the attachment was filed and on April 19, the garnishee answered, admitting that he had $490 in his hands belonging to defendant Duncan.

May 8, 1886, the motion to quash was granted and plaintiff then and there noted an appeal.

On the same day the garnishee paid over the money in his hands to or for defendant Duncan.

On the 7th of the following July-plaintiff sued out another writ of attachment in the same (principal) Suit and again attached the credits of the defendant Duncan in the hands of Hooe.

October 22,1886, the Court in General Term reversed the order of the Circuit Court, quashing the first writ, and on February 19, 1887, plaintiff recovered judgment against Duncan for $346.82 with interest from July 29, 1885, and costs of suit. It will be seen from the foregoing statement of facts that the main question is-whether or not the garnishee might immediately upon the quashing of the writ, and notwithstanding the appeal, pay over this money in his hands.

Counsel for the defense urges, among other things, first, that the garnishee had such right because plaintiff filed no supersedeas bond, and second that the suing out of the second writ of attachment was in effect a waiver of the first.

We are of opinion that, pending the appeal the garnishee was hound to retain the money in his hands, precisely as though no order quashing the writ had been made and whether a supersedeas bond were or were not filed. That such appeal was pending, we will assume because the appellate court entertained it and reversed the order appealed from.

We find nothing in the record, from which it may be inferred that plaintiff ever waived his rights under the first writ. On the contrary, he at once appealed from the order quashing his writ, perfected and prosecuted his appeal and secured a reversal.

The plaintiff is entitled to judgment of condemnation against the garnishee for the amount of his judgment against Duncan, including interest and costs not exceeding the sum of $490.

The order of the Special Term is accordingly reversed.  