PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Stephenson, Senior Justice

RONALD L. MOORE, INDIVIDUALLY, ET AL.
                                           OPINION BY
v.   Record No. 982376   SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
                                        November 5, 1999
MILLERS COVE ENERGY CO., INC., ET AL.


                 FROM THE CIRCUIT COURT OF LEE COUNTY
                        Ford C. Quillen, Judge

      In this appeal, we decide whether a judgment creditor can

obtain by garnishment of a court clerk funds voluntarily

deposited with the court by a judgment debtor in a pending

chancery suit.

      On April 8, 1998, Millers Cove Energy Co., Inc. and others 1

(collectively, Millers Cove) instituted a garnishment action

against Ronald L. Moore, individually, and others 2 (collectively,

Moore) and Charles Calton, Clerk of the Circuit Court of Lee

County (the Clerk).    Millers Cove sought to garnish $50,000 that

Moore had voluntarily deposited with the circuit court in

connection with a declaratory judgment proceeding Moore had

instituted against Millers Cove.    The return date of the

garnishment was May 26, 1998.


1
  The other judgment creditors are Darrell Barnwell; Hubert D.
Barnwell; Judy Barnwell; Carolyn B. Petrey; Susan M. Kincaid,
Trustee under the Will of Joseph A. Kincaid, deceased; and Mt.
Airy Farms, a Virginia general partnership.
2
  The other judgment debtors are Ruby Moore, Robert Moore, and
Ronald L. Moore, Co-executors of the Last Will and Testament of
Royce G. Moore, deceased.
     Moore is the lessee and Millers Cove is the lessor under

two coal leases on land in Lee County.   The garnishment action

is part of a legal dispute that began in 1989 when Millers Cove

gave notice that it considered the leases terminated due to

Moore's alleged breach thereof.   After receiving the notice,

Moore instituted the declaratory judgment suit seeking an

adjudication that the leases remained in effect.   The money that

Moore deposited with the court was an advance of the minimum

royalties due under the leases.

     The declaratory judgment action was stayed when Millers

Cove filed a bankruptcy petition in the United States District

Court for the Eastern District of Tennessee.   In the bankruptcy

proceeding, Millers Cove brought an adversary proceeding against

Moore seeking a determination that the leases were terminated

and also an award of monetary damages.   Ultimately, in that

proceeding, Millers Cove obtained a judgment against Moore in

the amount of $1,453,036.50.   That judgment is currently on

appeal before the United States Court of Appeals for the Sixth

Circuit.

     Millers Cove brought the judgment to Virginia and had it

registered in the United States District Court for the Western

District of Virginia.   Thereafter, Millers Cove (1) filed a

motion in the pending declaratory judgment action seeking to




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have the funds paid to it and (2) instituted the garnishment

proceeding which is the subject of this appeal.

     The trial court denied Millers Cove's motion to have the

funds paid to it, but the court granted the garnishment against

the Clerk.   Moore appeals.

     A judgment creditor, in a garnishment proceeding under Code

§ 8.01-511, has no rights greater than those possessed by the

judgment debtor.   Hartzell Fan, Inc. v. Waco, Inc., 256 Va. 294,

299, 505 S.E.2d 196, 200 (1998); Lynch v. Johnson, 196 Va. 516,

521, 84 S.E.2d 419, 422 (1954).     Consequently, the judgment

creditor is entitled to a judgment against a garnishee only if

the garnishee is indebted to the judgment debtor when the

garnishment summons is served on the garnishee or if such

indebtedness arises between the date of service and the return

date of the garnishment.      Virginia National Bank v. Blofeld, 234

Va. 395, 400, 362 S.E.2d 692, 695 (1987).

     Code § 58.1-3177(A) imposes upon a circuit court clerk "the

duty, unless it is otherwise specially ordered, to receive, take

charge of and hold all moneys paid into the court and to pay out

or dispose of these moneys as the court orders or decrees."      In

the present case, therefore, the Clerk had neither the

discretion, obligation, nor authority to pay the money absent an

order of the court to do so.     At the time the garnishment

summons was returnable, the court had not entered an order


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directing the Clerk to pay the money to Moore, the judgment

debtor.   Therefore, at that time, the Clerk owed no debt to

Moore.    Consequently, the trial court erred in awarding the

garnishment against the Clerk.

     Accordingly, we will reverse the trial court's judgment and

dismiss the garnishment.

                                            Reversed and dismissed.




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