Opinion of the court by

Numerous errors, are assigned and argued by counsel for plaintiff in error, but we are of the opinion that it is only necessary to consider one of them, as that disposes of this appeal.

It is contended by the plaintiff in error that the court erred in not discharging him on his answer, and. the petition of the plaintiff, since the plaintiff failed to serve the statutory notice that he elected to take issue on the garnishee answer. It appears from the record that no notice was served by the plaintiff upon the garnishee or his counsel, in writing or otherwise, within twenty days, as provided by the statute, that the plaintiff elected to take issue on his answer.

Section 4383 of Wilson’s Annotated Statutes of 1903 provides as follows:

*583 ‘‘The answer of the garnishee shall in all cases be conclusive. of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in writing that he elects to take issue on his answer; in which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition, and the garnishee’s affidavit the answer thereto."

Section 4379 provides that where the garnishee files his answer, under oath, within the time required by statute, that he is not indebted in any manner to the defendant, and. that he has no real or personal property, effects, or credits belonging to the defendant in his possession or under his control, that, the proceeding in garnishment shall be deemed discontinued, and the plaintiff shall pay the garnishee two dollars for his costs, unless within twenty days thereafter the plaintiff, serve notice on such garnishee that he elects to take issue on his garnishee answer and will maintain him to be liable as garnishee, in which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition, and the garnishee’s affidavit the answer thereto.

These provisions of our statute are plain, specific and mandatory. But it is argued by the defendants in error that these provisions of the statute were waived, because counsel for the garnishee consented to the appointment of a referee. This contention is clearly untenable. In an action of this kind two distinct and different issues are prseented. One between the plaintiff and defendant, and the other between the plaintiff and the garnishee. Hence, the appointment of a referee to hear and determine the issues involved in this *584 case, and to report Ms findings of fact and conclusions of law thereon, with the consent of the parties, did not waive any rights that the plaintiff in error had under the provisions of our statute as a garnishee. 'The objection, therefore, by counsel for plaintiff in error to the introduction of any testimony ought to have been sustained, and when the fact was called to the attention of the court that no notice was given as the statute requires that the defendant elected to take issue on the answer of the garnishee the plaintiff in error should have been discharged as such garnishee.

In 20 Cyc. 1097, the general doctrine is thus clearly and forcibly stated:

“The law indulges no presumption that the garnishee is liable, and his liability must be made affirmatively to appear in order to justify a judgment against him, and the uncon.tradicted answer or disclosure of the garnishee upon which no issue has been taken is presumed to be absolutely true, and where such answer or disclosure shows no liability on his part he is entitled to a discharge.”

And, again, the findings of the referee and the judgment of the court were clearly beyond the issues-presented by the petition, and the answer of the garnishee.

Section 4388 of Wlison’s Statutes provides that the garnishee is only liable, for the amount claimed in the plaintiff’s petition, and as disclosed in his affidavit upon which the garnishment summons is based. In this case the-plaintiff only claimed judgment against the defendant for $140 together with interest and costs.

In Gille v. Emmons, 48 Pac. 569, the supreme court of Kansas has decided that:

*585 “A judgment which is entirely outside of the issues in the case, and upon a matter not submitted to the court for its determination, is a nullity, and may be vacated and set aside at any time upon motion of the defendant.”

And since the garnishee, the plaintiff in error, answered that he was not indebted to the defendant in any manner, and the plaintiff failed to give the statutory notice that he elected to take issue on the answer, the conclusiveness of the facts therein stated could not be questioned in any subsequent proceeding, and therefore the findings of fact and conclusions of law thereon by the referee were entirely outside of the issues, and hence a nullity.

It follows that the garnishee, the plaintiff in error, should have been discharged upon his answer, and that the court erred in rendering judgment against him.

'The judgment of the district court is reversed, and the cause remanded, with directions to set aside and vacate the judgment, in so far as it affects the rights of the garnishee, Davis, and to enter judgment discharging him, with all costs.