ed. § 108; Connecticut Mut. L. Ins. Co. v. Schaefer, 94 U. S. 460, 24 L. ed. 253. No element of public policy is violated, indeed, by such an assignment or pledge. The policy was of course issued prior to its pledge or assignment. The money was loaned to the original insurer in order to enable her to continue her business and to weather her financial storms. Surely with the hope of such relief and after such relief, she would have less reason for destroying her property than if such help had not been obtainable. The temptation on the part of the owner who is pressed by many debts to burn his own property is certainly greater than that of a bank, which is generally but one of many creditors, to burn it for him.

Nor is there any merit in appellant's last point "that the oral agree ment between Rose M. Geiger and respondent was ineffective for that it was not complete, as something more remained to be done to enable it to be carried into effect; to wit, a destruction of the property insured by fire and the execution of a written assignment following such destruction, and therefore it was in fact no more than an agreement for a pledge or assignment of the policy in the event of loss, and as such it must date from the date of the execution of the assignment and be construed as of that date; to wit, January 3d, 1913; and that date being within four months of Rose M. Geiger's adjudication in bankruptcy, such transaction was voidable in the suit of the trustee, appellant herein."

We have examined the cases cited by counsel for appellant and have no fault to find with the statements therein made that "a mortgage or transfer of his property by an insolvent debtor within four months of the filing of a petition in bankruptcy against him, which otherwise constitutes a voidable preference, is not deprived of that character or made valid by the fact that it was executed in performance of a contract to do so made more than four months before the filing of the petition." See Cross, J., in Tilt v. Citizens' Trust Co. 191 Fed. 449, quoting from Re Great Western Mfg. Co. 81 C. C. A. 341, 152 Fed. 123, 127. Nor have we any quarrel to make with the decision in Ragan v. Donovan, 189 Fed. 138, 146, wherein a debtor in 1904, under an oral agreement not to record the same, deposited with his creditor deeds to his property, and, in 1909, the deeds were recorded within four months of the filing of petitions in bankruptcy, and wherein it was said that

"delivery therefore was not complete and effective until some act was done which was within the contemplation of the parties and which ended Cahill's dominion over the papers. That act was to file them for record, which was an eventuality clearly within the plans of the parties when they were made. Then only was there delivery." These cases are not applicable to the one at bar, and for the reason that in the case which is before us the policy was actually pledged and the assignment actually made at the time of the delivery of the same. The mere formal assignment did not create the lien or pass the property. Bush v. Boutelle, 156 Mass. 167, 32 Am. St. Rep. 442, 30 N. E. 607. The judgment of the District Court is affirmed.

On Petition for a Rehearing (filed September 8, 1916).

Counsel for appellant files a petition for a rehearing in which, among other matters, he lays stress upon the provisions of § 6467 of the Compiled Laws of 1913, which we neglected to mention in the original opinion, and which provides that "an insurable interest in property may consist in: 1. An existing interest. 2. An inchoate interest founded on an existing interest; or 3. An expectancy coupled with an existing interest in that out of which the expectancy arises."

We merely refer to this fact to make it clear that the section was not overlooked, and that its perusal does not in any way lead us to modify our former opinion or the construction that we have given to § 6466 of the Compiled Laws of 1913. The petition for a rehearing is denied.

HODGE HEIRS and Their Guardian, by Their Local Agent, A. H. David, Appellant, v. C. II. ANDERSON, Defendant, and Adolph Allickson, Garnishee-Respondent.

(159 N. W. 79.)

Garnishment

execution

torney

issued in aid of — jurisdiction — delivery to atnot to sheriff -no issuance.

1. Under the provisions of § 7568 of the Compiled Laws of 1913, an issuance of the execution is necessary to jurisdiction over a garnishee defendant when the garnishment is in aid of such execution, and it is not sufficient to merely

deliver it to the plaintiff's attorney, and there is no such issuance where the execution has merely been delivered to the plaintiff's attorney, and has not in turn been delivered by him to the sheriff or constable for execution.

2. The right of garnishment is merely a statutory right, and one who seeks to avail himself of it must conform to the provisions of the statute.

Opinion filed August 8, 1916. Rehearing denied September 8, 1916.

Appeal from the District Court of Pierce County, A. G. Burr, J. Action in garnishment.

Judgment for garnishee defendant. Plaintiff appeals.

Affirmed.

B. L. Shuman, for appellant.

It is elementary that the caption is not controlling as to parties, for it is to be conceded that if the garnishee herein is entitled to be heard in any court subsequent to the trial in the principal action he would be obliged to look into the pleadings for a further disclosure as to parties plaintiff who are interested in the action. But plaintiff denies to the garnishee any such right at this time. If it is a misnomer of parties, as contended by the garnishee, he cannot be heard, for defendant has not objected, and hence would be bound by the judgment. 2 Enc. Pl. & Pr. 954; 17 Am. & Eng. Enc. Law, 1043, 1050; 20 Cyc. 1074.

There is nothing in the law upon issuing executions as to whom they shall be delivered. In legal effect it is "issued" when the clerk signs and seals it, in an official manner. It can be implied that it shall be under the control of the judgment creditor. 11 Century Dict. & Enc. p. 3200; Comp. Laws 1913, §§ 7713, 7718, 9115.

This matter involves the garnishee proceeding in aid of an execution, or such proceedings as may be had after the execution has been issued. Comp. Laws 1913, §§ 7568, 7572, 7719.

It is the law in some states that the execution be returned nulla bona before garnishment can issue; but in this state such a prerequisite is not required. 14 Am. & Eng. Enc. Law, p. 750; Comp. Laws 1913, § 7568.

Matters of form only are not material. Comp. Laws 1913, §§ 7421, 7569.

The date of the delivery of an execution is not a material matter

unless the statute so requires. 17 Cyc. 937, 986, 1034, 1076, 1077; Jewett v. Sundback, 5 S. D. 111, 58 N. W. 20; First Nat. Bank v. Dwight, 83 Mich. 189, 47 N. W. 111; Peterson v. Wayne Circuit Judge, 108 Mich. 608, 66 N. W. 487; Smith v. Nicholson, 5 N. D. 426, 67 N. W. 296.

R. E. Wenzel, for respondent.

An execution in this state must be directed to the sheriff or constable. Such officers are the only ones who have to do with executions. The command or mandate of the court runs to them. Comp. Laws 1913, § 9117; First Nat. Bank v. Dwight, 83 Mich. 189, 47 N. W. 111.

"An execution cannot be considered as being 'issued' until it is placed where it might have been executed, and some efficient act done under it." 17 Cyc. 1033 (d); First Nat. Bank v. Dwight, supra.

"A writ is not issued until it has been delivered to the officer who is to execute it." 17 Cyc. 1033 d-ii.

A garnishee has the right to know that an execution has been issued in such case. 20 Cyc. 1143 (b).

"If the execution is invalid, the garnishment is also invalid.” Kentzler v. Chicago, M. & St. P. R. Co. 47 Wis. 641, 3 N. W. 369.

BRUCE, J. This is an appeal from the judgment of the district court of Pierce county vacating and setting aside a judgment of a justice of the peace, against the garnishee defendant, Adolph Allickson, on the ground that "no execution was issued in said action in support of which said garnishment issued by reason of the fact that same was not placed in the hands of a proper officer at the time of service of the garnishment papers upon the garnishee."

The only record that we have of the issuance of the execution is the entries in the docket of the justice of the peace that "on the 11th day of September, 1914, execution was issued in above-entitled action placed in hands of B. L. Shuman, attorney for plaintiff."

And again, "Garnishee appears specially in said action by his attorney, R. E. Wenzel, for the purpose of moving to quash the garnishment on the grounds stated in the written motion filed, and demands that a return be filed in this court upon the execution issued in the main action . . . motion of plaintiff overruled.

From this we must assume that all that was done was to deliver the

execution to the attorney, and the question to be determined is whether a delivery of such execution to the attorney, without a subsequent delivery to the officer who is to serve it, will justify the entry of a judg ment against a garnishee defendant under the provision of § 7568, Compiled Laws of 1913, which provides that "either at the time of the issuing of a summons, or at any time thereafter before final judgment, in any action to recover damages founded upon contract, express or implied, or upon judgment or decree, or at any time after the issuing in any case of an execution against property and before the time when it is returnable, the plaintiff, or some person in his behalf, may make an affidavit stating that he verily believes that some person, naming him, is indebted to, or has property, real or personal, in his possession or under his control, belonging to the defendant, or either or any of the defendants in the action or execution, naming him, and that such defendant has not property in this state," etc.

There are also involved two other questions which were raised by a motion of the plaintiff to strike from the record the motion to quash which was interposed by the garnishee defendant, namely: (1) "That this is a collateral proceeding and does not permit the garnishee to make a collateral attack on the judgment. (2) That the garnishee is a mere stakeholder as between the parties to the action, and cannot, at this time, make any defense except as to the service upon himself and his liability to the defendant."

We are satisfied that an issuance of the execution is necessary to jurisdiction over a garnishee defendant when the garnishment is in aid of such execution, and that it is not sufficient to merely deliver it to the plaintiff's attorney. We are also satisfied that "an execution cannot be considered as being issued until it is placed where it might have been executed." 17 Cyc. 1033 (d).

The command indeed is to the sheriff or constable, and not to the attorney, and the attorney is by no means the agent of the sheriff or constable. Comp. Laws 1913, § 9117. Until that command is given, no execution has been issued. First Nat. Bank v. Dwight, 83 Mich. 189, 47 N. W. 111; Pease v. Ritchie, 132 Ill. 638, 8 L.R.A. 566, 24 N. E. 433; Peterson v. Wayne Circuit Judge, 108 Mich. 608, 66 N. W. 487; Freeman, Executions, § 9a; 10 R. C. L. 1241; 8 Enc. Pl. &