On March 20th the default of the principal defendant was entered. No disclosure or appearance of garnishee defendant, Ludington State Bank, having been entered, on March 24th its default was also entered. June 8th judgment in assumpsit was rendered jointly against defendant Nelson and the bank. The judgment recited that "the said Charles Nelson as well as the said Ludington State Bank, did undertake and promise in manner and form as the said W. H. Warner Coal Company hath in their declaration in this case complained against them"; that plaintiff had suffered damages "to the sum of one thousand and fortyfive and 32/100 dollars," and "that the said W. H. Warner Coal Company do recover against the said Charles Nelson, as well as against the said Ludington State Bank, their damages aforesaid" together with costs, and that the "said W. H. Warner Coal Company have execution therefor." June 14th defendant bank filed a motion to set aside its default and the judgment entered against it, and to permit it to file its disclosure showing no funds in its hands belonging to the principal defendant. The motion was supported by the affidavit of the president and cashier of the bank; that of the president showing that he usually attended to the litigation of the bank (it appears from the record that he is an attorney), that when the writ of garnishment was served he was ill, unable to attend to business and his recovery was gradual, and that when he recovered, the copy of the writ had been lost, and that nothing was then brought to his attention about the garnishment proceedings until he learned from a newspaper on June 11th that judgment had been taken against the bank. The cashier's affidavit showed among other things that the bank had no money to the credit of the principal defendant when the writ was served nor since that time. It appears that the next session of court was October 4th and the motion

was noticed for that day. It was denied. It is to be inferred that the ground was want of an affidavit of merits. On October 5th another motion to set aside the default and judgment was filed with more amplified showing. This motion came on to be heard October 9th and was met with the objection that under former Circuit Court Rule No. 12b then in force, six months having expired since the entry of the default the court was without power to grant the motion. This ground of objection was sustained, the court saying:

“If I could help you, I would, and do it legitimately. The court has no discretion and no power-absolutely none. The default is regular and the whole record is regular, and there is only a slight error, if at all, and you have corrected it in your own showing. (This evidently referred to the return of the officer.)

"You slept on your rights and let your remedies die and now the court cannot help you. He is powerless to do so. I would be glad if I could, but I cannot do so."

On October 20th an affidavit of merits and a disclosure was filed, and on October 22d plaintiff's costs in the principal suit were taxed. On December 9th another motion to set aside the default was filed which contained additional reasons by way of certain claimed irregularities in the proceedings. This motion was heard the same day it was filed and was denied. The court also made the following order:

"The joint judgment against the principal and garnishee defendant is hereby set aside as to the garnishee defendant, but may stand at the option of counsel for the plaintiff, as a valid judgment against the principal defendant."

It should also be stated that counter affidavits were filed on these various motions, but as the action of the trial judge was based on want of power to consider the motion rather than an exercise of discretion,

After the

we deem it unnecessary to detail them. entry of the last mentioned order and on December 18th plaintiff filed a motion to correct the judgment entry against the principal defendant so that it might be in proper form a judgment against the principal defendant alone on default and proofs in open court, and also on the same day filed a motion for an order requiring the clerk to enter judgment against the garnishee defendant for the amount of plaintiff's claim nunc pro tunc as of June 8th. These motions had supporting affidavits. The garnishee defendant on January 3, 1916, filed a motion to discontinue the garnishee proceedings on the ground that plaintiff had failed to proceed to judgment against the garnishee defendant as soon as it was entitled to under the rules and practice. These three motions came on for hearing January 5th. Defendant's motion was denied and plaintiff's motions granted. On the same day a judgment in proper form as to defendant Nelson was entered nunc pro tunc as of June 8, 1915, and one against the bank nunc pro tunc as of June 10, 1915.

FELLOWS, J. (after stating the facts). The case is here upon writ of error sued out by the garnishee defendant alone, and we are therefore concerned only in the proceedings against it. We do not find it necessary to consider all the questions raised as we are satisfied that a disposition of one phase of the case is controlling. Appellant insists that the judgment against it was prematurely entered, and that in any event the joint judgment rendered against it and the principal defendant is neither valid nor warranted by law. In considering the question here involved we must take into consideration that the proceeding in garnishment is special and statutory, affording a harsh remedy, and that one pursuing it must bring himself within the statute and follow its mandates: Iron

204-Mich.-21.

Cliffs Co. v. Lahais, 52 Mich. 394; Weimeister v. Manville, 44 Mich. 408; Ford v. Detroit Dry Dock Co., 50 Mich. 358; Ettelsohn v. Insurance Co., 64 Mich. 331. The statute and rules in force at the time of this proceeding are those to be considered; section 10612, 3 Comp. Laws 1897, provides:

"If the plaintiff obtain judgment against the principal defendant, in the circuit court, and the latter does not, within two days thereafter, serve upon the garnishee notice of motion for new trial, or of his intention to remove the cause to the Supreme Court, the statutory issue shall stand for trial at that term of the court on the docket containing the suit in the order of formation of such issue."

It is most earnestly insisted by plaintiff's counsel that Crippen v. Fletcher, 56 Mich. 386, is authority to support plaintiff's right to proceed at once to judg.ment against the garnishee defendant unless objection is made and it is said by counsel:

"The garnishee defendant having been in default as well as the principal defendant, both must be held to have consented to the rendition of the judgment upon June 8, 1915, as entered by the clerk in the first instance."

It is possible that there is some language used in the opinion in the case cited tending to give color to counsel's claim, but we must consider the question there under consideration and all that was said instead of an isolated excerpt. In that case the trial was held by consent of the parties, and it was held that it could not be urged in this court that it was brought on improperly. After remarking that, "The only question now is whether it affects the jurisdiction to proceed earlier where no one objects," the court said:

"It is clear enough that the garnishee defendant could not be compelled to go to trial within the two days; and further that, if appellate proceedings should

be had by the principal debtor, the garnishee judgment, if rendered, could be stayed by the circuit court until the other was disposed of. But there seems to be no reason why the garnishee defendant may not consent to have the issue as to him tried at any time, and in the present case it is found expressly that both parties came into court ready for trial, and no objection was made below at all. It cannot now be insisted the trial was improperly brought on."

In the instant case the garnishee defendant did not consent; it had not appeared, and most assuredly where it had not appeared, its consent to an irregular proceeding could not be presumed. Its want of appearance did not waive its right to insist upon the provisions of the statute being complied with, nor estop it from insisting that the proceedings were irregular. The statute provided an interim of at least two days between the judgment against the principal defendant and that against the garnishee defendant. This judgment was therefore prematurely rendered against appellant. A premature judgment is invalid. Vohlers v. Manufacturing Co., 171 Mich. 8 (Ann. Cas. 1914B, 1032). See, also, Peninsular Savings Bank v. Ward, 118 Mich. 87; McGinley v. Mining Co., 121 Mich. 88, and other cases where this court in cases involving the validity of tax proceedings has held that a decree was prematurely entered and void if entered without waiting the five days provided by the following statute:

"If, within the first five days after the day fixed in such notice for the hearing of such petition, it shall be made to appear to the court that any person has been prevented from filing objections to any tax, without fault on his part, such further time may be granted for that purpose as may seem proper, not exceeding five days." Section 66, Act No. 206, Pub. Acts 1893.

See, also, Liverpool, etc., Ins. Co. v. Grocery Co., 97 Ga. 746 (25 S. E. 828).