falsity, and therefore a nullity. If, however, plaintiffs were not made parties to the suit in which the judgment was rendered, their interest in the property was in no way affected by it, although the judgment may have been good enough in itself, valid and binding on those made parties, and duly served, if any such there were. As to plaintiffs, it was an absolute nullity on its face, could cast no cloud upon their title, and afforded no ground for an action by them to set aside such judgment, or declare it void.

The case, presented in this way, shows that this proceeding is an attempt, under the guise of a bill in equity to remove a cloud, to try the legal title to the premises. If plaintiffs have any title at all to the premises, it is a legal title; if defendants have any title, it is a legal title, apparent upon the face of the record. The only question to be determined is, Which has the paramount legal title? The case presents no feature calling for the interposition of the extraordinary power of a court of equity. It is not even averred in the petition nor is there any evidence tending to show that defendants ever have or are asserting any claim or title to the premises, and for all that appears in this record, they may make no claim to the property. At all events, the law has placed at the service of plaintiffs an action, if they are in possession as they claim, by which they could ascertain that fact, and by which the defendants could be required, if they made any such claim, to assert it in an action of ejectment, or forever after hold their peace; and if they made none, to make such a disclaimer without costs as would put plaintiff's title as to them forever at rest. This was the action that plaintiffs, if in possession, ought to have resorted to; for, whilst this action does not supersede the equitable action to remove a cloud from title in cases properly calling for the exercise of equitable jurisdiction, it is the only one that plaintiffs show themselves entitled to upon the facts stated in their petition.

But could it be conceded that the legal title to the premises could be tried in this equitable proceeding, it is not perceived how plaintiff's action could be maintained on the evidence in the case. It will be observed that plaintiffs, to show title in themselves, simply trace the relationship between themselves and Mary O. Smith, and if they have shown any title at all to the premises, it is such title as they have acquired by

descent from Mary O. Smith. If she had no title, then plaintiffs have none, and there is not a scintilla of evidence tending to show that Mary O. Smith ever had any title to the lot, and in this connection it may be remarked that, upon the case made solely by the plaintiffs (for the defendants claimed nothing and proved nothing), if Mary O. Smith had no title, "her unknown heirs by descent" had none. Defendants acquired none under the tax sale and sheriff's deed, and the alleged cloud is in the sky,-this whole litigation in nubibus; nor have the plaintiffs succeeded in bringing it to earth by showing possession of the premises. There is no evidence tending to show that Mary O. Smith or plaintiffs, who claim under her, have ever been in possession. On the contrary, it appears from the evidence that for more than twenty-five years prior and up to the time of the institution of this suit, the lot had been in the actual and continuous possession of parties not holding under Mary O. Smith or either of the plaintiffs herein, but who, if they were tenants of anybody, were tenants of M. C. Cheatem or of M. C. Cheatem and H. B. Brickell, and there is nothing in the evidence tending to show that in the letting of the lot to the first occupants by Jamison, the agent of Brickell and Cheatem, which is the only letting shown that either he or they were acting for or on behalf of Mary O. Smith. On the contrary, Jamison testifies that he acted for Cheatem only, and knew no one else as having an interest in the lot, and Mr. Boeckler, who was a member of all the firms and president of the corporation in possession of the lot for twenty years before this suit was brought, testified that he never heard of Mary O. Smith nor of the plaintiffs in this suit before the tax sale; and to further negative the idea that Cheatem, in this letting, was acting for Mary O. Smith, it is shown that prior thereto she had conveyed her legal title, if any she had, to Cheatem and Brickell in trust, but upon what trust does not appear, and that they, after such conveyance, asserted title in themselves by signing a deed to the property as grantors, in view of a contemplated sale by their agent. The plaintiffs having failed to show either title to or possession of the premises were not in position to attack the proceedings in the back-tax suit in any form of proceedings, either legal or equitable, and their bill was properly dismissed.

The judgment of the circuit court is affirmed.

EXECUTIONS ARE NOT VOID THAT HAVE BEEN ISSUED according to the established course of practice, and are not so erroneous that they cannot be amended: Hunt v. Loucks, 99 Am. Dec. 404, note 412.

AWARD OF EXECUTION IS JUDICIAL NOT MINISTERIAL ACT: See Johnson v. Ball, 24 Am. Dec. 451, note 454.

EXECUTION AS ISSUED MUST BE WARRANTED BY JUDGMENT: See Blanks v. Rector, 88 Am. Dec. 780, note 782.

POWER OF COURT TO AMEND ITS RECORDS: See McCormick v. Wheeler, 85 Am. Dec. 388, note 396, where other cases in that series are collected.

BULL TO REMOVE CLOUD ON TITLE LIES WHEN: See Scott v. Onderdonk, 67 Am. Dec. 106, note 110.

RECORD OF COURT IS ITS MINUTES, READ, CORRECTED, AND SIGNED BY COURT: Dennis v. Heath, 49 Am. Dec. 51, note 53.

MCGARRY V. LEWIS COAL COMPANY.

[93 MISSOURI, 237.J

SERVICE OF PROCESS OF GARNISHMENT DOES NOT CREATE SPECIFIC LIEN in favor of the plaintiff upon the property of the defendant in the hands of the garnishee.

ACTION for conversion. The opinion states the case.

Martin, Laughlin, and Kern, for the appellant.

Given Campbell, for the respondent.

A

By Court, RAY, J. This is an action by plaintiff against defendant for damages in the sum of five thousand dollars, for the conversion of a steam-tug called the Alice Parker. general demurrer was sustained to the petition, and final judgment entered thercon in favor of the defendant, from which plaintiff has appealed. The petition charges, substantially, that, on the 7th of March, 1877, judgment against Thomas Parker was rendered in the St. Louis circuit court in favor of Henry D. Laughlin in the sum of $2,250, and interest and costs; that, on the 19th of September, 1878, said judgment was assigned to the plaintiff for value; that, on the 18th of January, 1879, an alias execution was sued out, in due form of law, returnable to the February term, 1879, and delivered to the sheriff of the city of St. Louis; that, under directions of plaintiff, the sheriff, in due form of law, summoned one Thomas Parker, Jr., as garnishee of Thomas Parker, defendant in the execution; that, in obedience to the summons, said garnishee appeared at the return term of the writ to answer interrogatories relating to his indebtedness to the defendant in the execution; that the

sheriff, at the same time, did declare, in writing, to said garnishee, of which he made full return, that he attached in his hands (and summoned him as garnishec concerning) any goods, chattels, moneys, or evidences of debt which he might have belonging to said judgment debtor; that interrogatories were exhibited, and that said garnishee, in his answer, did not truly answer as to property and effects in his hands; that plaintiff, in his reply to said answer, alleged that said garnishce had in his possession, and under his control, the steam-tug called the Alice Parker, and that said tug was the property of the defendant in said execution, and that it was of the value of three thousand five hundred dollars; that the issues raised in said garnishment proceedings were referred to John A. Harrison, Esq., as referee, to try the issues and report to the court his findings and decision; that, upon the pleadings and proofs submitted by both sides, the said referee made his report, and filed the same on the 1st of November, 1883; that, in his said report, said referee found in favor of plaintiff, and against said garnishee, to the effect that, at the service of said garnishment, said garnishee had in his possession said tug, and that it was the property of Thomas Parker, defendant to this execution; that said report was confirmed by the court, and that the court, on the eighteenth day of January, 1884, made and entered an order on said garnishee requiring him to deliver said steam-tug to the sheriff on or before Monday, February, 1884; that, on the 29th of January, 1884, said order was duly exhibited to said garnishee, and that he failed to comply with the same, or to deliver to the sheriff as commanded; that, by reason of the premises, plaintiff acquired a lien upon said steam-tug in the hands of said garnishee; that, before his said lien was established by the judgment of the court, to wit, on the eighth day of January, 1880, the defendant received said. steam-tug into its possession, and converted the same to its own use to plaintiff's damage in the sum of five thousand dollars, for which judgment is prayed.

It will be observed that no notice or knowledge of said garnishment by this defendant is charged, nor is any collusion alleged. Briefly, then, the question thus presented by the record is, whether plaintiff, as assignee for value of said judgment in favor of Laughlin against Thomas Parker, had, by said process of garnishment against said Thomas Parker, Jr., upon alias execution under said judgment, acquired a valid lien upon the said steam-tug Alice Parker. A lien of this sort.

is unknown to common law; and the question then is, whether our statute creates a specific lien upon the property under and by virtue of the service of the process of garnishment. In sustaining the demurrer, the trial court must have held that no such lien existed; and in this view of the law we concur. None of the various provisions in our statute give in terms any such lien; and it is, we think, obvious that the responsibility of the garnishee (at least until an order of court is made in the cause to turn over the property) is given and substituted in lieu of such lien. No provision has been pointed out prohibiting the garnishee, upon the mere service of the garnishment process, from disposing of the property; but on the other hand, various sections on the subject look to rendering the garnishee personally liable for misappropriation, or failure to produce the property to satisfy the judgment which may be rendered in the cause.

In general, it may be said that garnishment is a proceeding especially designed for the attachments of credits or debts due the defendant; and while it may be employed with respect to tangible and specific property in the possession of a person other than the debtor, it is in these respects resorted to in order to avoid the responsibilities incident to the actual seizure and custody of the property. Often it is uncertain whether the third person has in his possession any property belonging to the defendant; or it may belong to the defendant with the right of possession in such third person. Garnishment is, as the term implies, a warning to the garnishee not to dispose of the property of the defendant in his hands, and that if he does so dispose of the same, he will subject himself to personal liability for the value to the extent at least of the plaintiff's debt or claim.

Ordinarily, property is not deemed to be in the custody of the law until actually seized and reduced into possession by the officer. Under the law applicable to attachments, it is the levy by the officer that creates the lien. If the plaintiff is not satisfied to look to the responsibility of the garnishee, he may apply to the court, or to the judge in vacation, and obtain an order upon the garnishee to deliver the property to the sheriff or into court, or the court may permit the garnishee to retain the property upon the execution of a bond to plaintiff with security: R. S. 1879, sec. 2524; Bank of Missouri v. Bredow, 31 Mo. 523. These provisions seem to have been regarded as affording ample protection.