Finch

The record discloses evidence of three separate actions, all of which, respondent claims, are material to the controversy. The first, numbered 12,695, was brought October 29, 1907, by the plaintiff here against the defendant Finch and others for an accounting. A restraining order was issued and served upon this appellant, on said October 29th, enjoining it from paying out or transferring any money it had on said date to the credit of the defendant, Paul V. Finch, until the further order of the court.

On November 14, 1907, the same plaintiff filed a complaint in case No. 12,845 against the same defendant to secure a judgment for the sum of $5,500 upon a different transaction and liability. On December 3, 1907, a writ of attachment was issued in this case and appellant was regularly garnished. Appellant failed to furnish the sheriff with a statement of the amount of money due defendant, or any information concerning the same, and appellant was cited on the seventeenth day of December, 1907, to appear for examination, whereupon appellant “made answer to said plaintiff that said Western National Bank had in its possession and under its control the sum of $2,000 in cash, as a…

I dissent from the order denying a rehearing. In response to the rule to show cause the bank by its cashier made return that in compliance with the writ of attachment in plaintiff’s action it had paid to the sheriff of San Francisco, December 26, 1907, the whole of the $2,000 belonging to the defendant Paul at the time the garnishment was served. If this was true, it completely exonerated the bank; and, whether it was true or not, was a question for a jury in an action to be brought by the plaintiff, and it could not be determined by the court in this summary proceeding.

Angellotti, J., concurred in the dissenting opinion.