and May, A. D. 1896, it is therefore considered by the court that the plaintiff, the New Mexico National Bank, do have and recover of the said garnishee, the Atchison, Topeka & Santa Fe Railway Company, the said sum of four hundred dollars so due and owing from the said garnishee to the said defendant, George L. Brooks, as aforesaid." The counsel for defendant, on October 12, 1896, filed a motion to vacate this judgment, and the court, on the hearing, denied the motion, and the judgment stands unmodified, and not appealed from. We are of opinion, and so hold, that this judgment is a finality, and a complete bar as against the defendant, Brooks; and that the court was without any jurisdiction to make the order on the second day of January, 1897, requiring the money then in the hands of the clerk to be paid over to the said defendant, Brooks. Exemption is a personal right, and the party wishing to avail himself of that right must make his claim and assert it seasonably. The defendant should have filed his claim before judgment final against the garnishee. This he did not do, and he lost his personal right. "If a judgment debtor suffer property or credits of his to be subjected to garnishment, making no exception or objection till the garnishee has been condemned to pay or deliver for execution, his right of exemption is lost." Waples, Attachm. 527. Randolph v. Little, 62 Ala. 396, is a garnishment proceeding similar to the case under consideration, and it was held that the court had no jurisdiction. to order the money paid over to the defendant in the original judgment, who failed to file his claim for exemption until after judgment against the garnishee. The court said: "As we have said above, the circuit court had jurisdiction to discharge the garnishee, or to render judgment against him. After the judgment was rendered against the garnishee, that court had no authority to make the order that the money, when collected, should be paid to Russeau. That order was without jurisdiction, is void, and is hereby vacated." It was held in the case of Miller v. Sherry, 2 Wall. 237-a case in which the defendant in the original judgment filed his claim for a homestead after final decree had been entered approving the sale of the homestead, as follows: "In regard to the homestead right claimed by the plaintiff in error, there is no difficulty. The decree under which the sale was made to Bushnell expressly devested the defendant of all right and interest in the premises. It can not be collaterally questioned. Until reversed, it is conclusive upon the parties, and the reversal would not. affect a title acquired under it while it was in force." In the case of Rector v. Rotton, 3 Neb. 171, in which the defendants claimed for the first time a homestead right to a tract of land sold under a foreclosure sale, on a proceeding for the confirmation of the sale, the court said in commenting on this point: “But I have said the right secured to the head of a family by the homestead act is a personal one, and, being personal, it may, of course, be waived. It may be lost, even where no contract has been made respecting it, by not claiming the protection of the statute at the proper time. The rule * * * of law, applicable alike to proceedings in equity and actions at law, undoubtedly is that, after a judgment or decree in rem against him, it is too late for a party to the record to assert any claim to the property, either as a homestead or otherwise, which might have been made and determined in that suit. Were it otherwise, it would be quite difficult to put an end to litigation." In Perkins v. Bragg, 29 Ind. 507, the court, in commenting on the exemption statute of that state said: "The question involved in the case is, can an attachment defendant, after judgment and an order of sale of the attached property, claim it as exempt from sale on the final process issued on such judgment? In State v. Manly, 15 Ind. 8, it was held in the negative. It is claimed that that ruling is wrong. The statute on the subject is this: That an amount of property not exceeding in value three hundred dollars, owned by any resident householder, shall not be liable to sale on execution, or any other final process from a court, for any debt growing out of or founded upon a contract, express or implied.' It is argued that this provision is broad enough to and does embrace final process on judgments in attachment, in which there is an order for the sale of attached property. The order of attachment only reaches lands and tenements, goods and chattels, of the defendant, subject to execution. Whether the property attached is subject to execution is res adjudicata after judgment in attachment. The judgment against the property is a judgment in rem, and is as conclusive as a judgment against the person." The rule laid down in State v. Manly, supra, was affirmed. See, also, Slaughter v. Detiney, 15 Ind. 49; Sibbald's Case, 12 Pet. 492; Bank v. Beverly, 1 How. 134; State v. Bermudez (La.), 2 South. 425; Barton v. Brown, 68 Cal. 11. This doctrine has been repeatedly affirmed by the supreme court of Pennsylvania under a statute similar to our own. In Bair v. Steinman, 52 Pa. St. 423, that court held that: "Though a debtor is entitled to the statutory exemption of $300 worth of his estate as against the process we call attachment execution, he is to obtain it, as in other cases, by demanding it of the officer when the process is served, or within a reasonable time thereafter. * If, as in this instance, he fail to make a demand, a subsequent plea of his rights will not avail him. This was ruled in Strouse's Ex'r v. Becker, 44 Pa. St. 206, and we do not see that there is anything else in the case." Jones v. Tracy, 75 Pa. St. 417. We think the case of Muzzy v. Lantry, 2 Pac. 103, is clearly distinguishable from the case at bar in this. In that case the defendant to the original suit appeared, and filed his affidavit in due form, and claimed the money in the hands of the garnishees before any judgment was obtained against them; and the court properly held that the money was exempt from execution process under the statute, and ordered the garnishees to pay the money due from them to the original defendant in the first instance, and no judgment was entered against them in favor of the plaintiffs. That is a very different case from the one under consideration. Defendant in error cites Mull v. Jones (Kan. Sup.), 5 Pac. 388, as authority in support of his contention that the judgment in this case is not res adjudicata. In that case the plaintiffs, Mull & Son, obtained a judgment * * against the defendant Brown, and about a year thereafter instituted garnishment proceedings against the garnishee defendant Jones, and at the trial it was found that Jones, the garnishee, was indebted to defendant Brown, and the garnishee was directed to pay the money into the justice court, which he refused to do, and the plaintiffs, Mull & Son, instituted proceedings under a statute of that state to recover the money from Jones, the garnishee. The plaintiffs contended in that case that the order by the justice of the peace on the garnishee to pay the money into court was conclusive on the garnishee, but the court held that it was not on the decision in the case of Board v. Scoville, 13 Kan. 17. In speaking of such orders made by a judge pro tem of the district court, and by the justice of the peace, the court say: "Neither of said orders is a judgment. The making of them is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is, in effect, only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater rights than the debtor had, and the garnishee loses no rights, and the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action." That decision was based on section 490 of the Code of Civil Procedure of Kansas, which directs that the garnishee pay the money found due from him into court, and is not a final judgment against the garnishee and in favor of the plaintiff. In the case at bar the judgment of the district court was final, and the plaintiff was authorized to recover the sum of $400 from the garnishee, and this judgment was in compliance with the statute (section 1948, Comp. Laws 1884): "If by the answer not excepted to or denied, it shall appear that the garnishee is possessed of property or effects of the defendant, or is indebted to the defendant the value of the property or effects, or the debt being ascertained, judgment. may be rendered against the garnishee." In Mull v. Jones, supra, the contention was between the plaintiffs and the garnishee,and was decided upon the theory that it was the duty of the garnishee to disclose that the money in his possession due the defendant was exempt, and therefore not subject to execution; and in that case it was expressly held that: "While exemption is, in a certain sense, a privilege, and one which may be waived by the person entitled thereto, yet it is a privilege which continues in a debtor until he waives the same. It will hardly be contended that the defendant has forfeited or waived that privilege until he has had notice of the garnishment proceedings. If, upon notice, he should expressly waive the exemption, or if, after notice, he should neglect and refuse to assert the privilege and claim the exemption, it possibly might be treated as an implied waiver of his right which would protect the garnishee, in case he should pay over the money or deliver the property, from any subsequent action brought by the debtor against him to recover the same." That is exactly what we hold the defendant, Brooks, did in this casethat he had full notice of the garnishment proceedings, and procured his counsel to prepare and draw the answer for the garnishee, and refused to assert his exemption claim, and then for more than three months after the final judgment against the garnishee neglected to make any claim of his privilege of exemption. We are of opinion that the principle is well established upon reason and authority that under statutes similar to our own a final judgment in favor of the plaintiff and against the garnishee, after notice to the defendant of the garnishment proceeding, in whatsoever way obtained by him, and his fail res adjudicata. ure, neglect, or refusal to assert his personal TRIAL judgment: privilege of the right of exemption seasonably, is res adjudicata. The position taken by defendant in error that he was a necessary party to the garnishment proceeding, and should have been served with some kind of process notifying him of that fact, is untenable. He was already a party to the judgment against him, and was in court for all purposes pertaining to the enforcement of that judgment. When the execution was placed in |