The following .opinion on rehearing was filed June 9, 1904. Judgment below affirmed:
2. -: -: Bona Fide Pubchasee. If the debtor has sold or pledged the stock in good faith before the levy, the right of such bona fide purchasers will not be affected by the levy, even though, by the books of the corporation, the stock appears to be the property of the debtor and is so regarded by the corporation. 3. Appeal: Errors Not Considered. In appeals to this court in equity cases, the findings of the trial court must stand or fall upon the pleadings and evidence contained in the record. Errors of the trial court in receiving or rejecting evidence, or upon questions arising upon the pleadings, can not be corrected upon such appeal. Sedgwick, J.At the first hearing in this case, upon the opinion of Mr. Commissioner Day, the decree of the district court was affirmed. 63 Neb. 130. At the second hearing, and upon the opinion of Mr. Commissioner Hastings, the decree of the district court was modified, and a decree entered in this court against two of the defendants. Ante, p. 713. Upon the motion of these defendants for rehearing further argument was had before the court. The issues are somewhat complicated and the evidence is very voluminous. Upon an examination of this record, we find no cause to doubt the correctness of the conclusions reached upon the several hearings, unless it be upon the matters suggested in the seventh paragraph of the syllabus of the opinion upon the second hearing. The trial court found: “That prior to the commencement of such proceedings at law by the plaintiff, and the several cross-petitioners herein, wherein garnishment proceedings were had, the said Charles W. Mosher and E. C. Outcalt had transferred, assigned and delivered all of the stock appearing by the books of the said several companies as belonging to them, either by actual sale as collateral security or in manner as is herein found, and were not the owners of any stock in the said several companies at the time of the institution of the proceedings at law by the plaintiff and the several *726cross-petitioners, as alleged in their several petitions.” It is said in the opinion that this finding of the trial court is supported by the evidence. It is also said that, the evidence discloses clearly that dividends on the stock accrued after the garnishment, and were credited to Mosher and Outcalt, and that $1,079 of this- fund were paid to Whedon on the order of Outcalt, and $8,327.66 were paid to Thompson upon the order of'Mosher out of this fund. It appears that these dividends had been credited by the corporation upon its books to Mosher and Outcalt, and that the corporation had retained the dividends during the pendency of the litigation; and it was thought that such part of these dividends as had not been claimed by other parties during the pendency of the legal proceedings, and had been paid out upon the orders of Mosher and Outcalt, should have been applied upon their debts. It was accordingly recommended that judgment be entered in this court against the parties who received this money upon these orders. Is this conclusion correct?
It is insisted in the briefs that dividends declared upon the stock after the attachment and garnishment proceedings would not be bound thereby. Very many authorities are cited upon the proposition that “the validity of an attachment depends upon the state of facts existing at the time when levied. It can not reach any liability of the garnishee accruing after the service of process upon him.” These authorities are not in point upon the question presented.
A stockholder’s interest in a corporation and in all of its property -and rights is represented by his stock. There can be no question that the levy upon the stock by the garnishment of the corporation pursuant to the statute will impound the whole interest of the stockholder in the property and rights of the corporation, and that the right to receive dividends goes with the stock. We are satisfied with the discussion of this question by Mr. Commissioner Day in the first opinion herein. We think he has correctly construed the statutes quoted and properly applied *727the principles announced in the authorities cited by him. His conclusion, that the interest of Mosher in the stock, whatever it might be, was transferred to Bell under the foreclosure sale, does not affect the result, because, as was shown in the opinion upon the second hearing, this purchase was made at a nominal price, when compared with the face value of the stock purchased, and was made from dividends which had been declared upon the stock itself while these proceedings were pending. Such purchase would not change the rights of the parties in the stock as already fixed by the garnishment proceedings, or by bona fide transfers of the stock by Mosher and Outcalt before the proceedings were begun. We have no doubt that the garnished corporation from the time of service of the notice upon it became liable to account to the attaching creditors for the stock then actually OAvned by Mosher and Outcalt and its proceeds. National Bank of New London v. Lake S. & M. S. R. Co., 21 Ohio St. 221. It is equally true that parties to whom the stock had been sold or pledged in good faith as collateral security prior to the garnishment proceedings Avould be entitled to the stock and the proceeds thereof as against the attaching creditors. The question is whether the stock of the Lincoln Gas Company that stood in the name of Mosher and Outcalt upon the company’s books at the time of the commencement of the garnishment proceedings had been before that time sold or pledged in good faith to other parties. As before stated, the trial court found that it had been. Is this finding sufficiently supported by the evidence? If it is, it follows from the foregoing suggestions that the judgment of the district court is correct. If not, then such part of the stock as actually belonged to Mosher or Outcal't at the commencement of the proceedings should be applied upon the claims of these creditors, including the dividends since declared upon the stock.
It was sought in the petition to charge the gas company as trustee of the stock belonging to Mosher and Outcalt. It was alleged that other parties were claiming the stock; *728that their claims were fictitious and fraudulent; and that the claims were really made in the interest of Mosher to enable him to obtain the value of the stock for his OAvn use. The plaintiff asked that the gas company be required to show who the parties were making these claims, and what their interests, if any, really were in the stock. This feature of the petition does not seem to have been afterwards insisted upon. The gas company’s ansAver to these allegations was a general denial. No attempt was made by the gas company in its pleadings to show AvliO' were, in fact, the owners of the stock except through sale to Mr. Bell. It was claimed in the answer that this sale to Mr. Bell transferred all of the interest of Mosher and Outcalt in the stock. The issues being in this condition, it was no doubt competent for the plaintiff to examine the officers of the gas company and other witnesses fully in regard to the ownership of the stock. This the plaintiff sought to do, but objection was made and sustained by the court. The result is that the evidence upon this point is very incomplete and unsatisfactory. This error of the court may have resulted in great injury to these plaintiffs, but it can not now be corrected upon this appeal.
Under our practice, established by a long line of decisions, upon appeals in equity the findings of the trial court must stand or fall upon the pleadings and evidence contained in the record. The party complaining of the decree of the trial court must choose his remedy, Avhether by appeal or by proceedings in error. An error of the trial court in receiving or in refusing evidence can only be corrected upon proceedings in error. If this rule of practice leads to injustice in many cases, it remains to the legislature alone to supply the remedy.
Undoubtedly, the general rule is, as stated in the last opinion, that “in commencing this action, plaintiff assumed the burden of establishing Outcalt’s and Mosher’s ownership of this stock.” The plaintiff insists that the burden of rebutting that presumption is cast upon the defendant. Several cases are cited upon this point, one *729being Turnbull v. Payson, 95 U. S. 418, from which the following quotation is made in the brief: “Where the name of an individual appears on the stock book of a corporation as a stockholder, the prima facie presumption is that he is the owner of the stock, in a case where there is nothing to rebut that presumption; and, in an action against him as a stockholder, the burden of proving that he is not a stockholder, or of rebutting that presumption, is cast upon the defendant.” This rule obtains in an action where the claimant of the stock is a party to the suit. No doubt upon a direct issue between two parties, both claiming to- own the stock, the prima facie presumpition is that the stock stands upon the company’s books in the name of the real owner; but when that presumption is overcome, the burden of proof would still be upon the plaintiff to show his ownership in the stock.
In Barker v. Osborne, 71 Me. 69, it was said: “Where, by the disclosures of an alleged trustee, it appears, that at one time prior to the service of the writ upon him, he held funds of the principal defendant, which would be attachable in that suit, the burden is upon the trustee to show, that, prior to the service, he had expended such funds for the defendant’s benefit, and this can not be done by doubtful, indefinite, and sweeping statements, with an omission of details and particulars.” In that case the trustee relied upon his own act to relieve him of liability. He was therefore in position to know and, if true, to sustain his allegation. When the corporation is garnished, the plaintiff claiming that it holds the stock for the debtor, it is sufficient answer for the garnishee to show that there is reasonable ground to believe that some third party, who is not a party to the litigation, is the owner of the stock, and that the corporation will be liable to such owner thereon. In an action in equity to determine the question of the ownership of the stock, and to appropriate it in satisfaction of plaintiff’s claim, all persons claiming the stock should be made parties. If the claimants are unknown, or the corporation as garnishee attempts to disguise the facts and *730avoid plaintiff’s lien, as is alleged in this case, the court would, no doubt, when the facts were discovered, allow new parties to be brought in and determine that question after full investigation. We are not satisfied that the evidence in this record fails to support the finding of the trial court. There are many circumstances disclosed in the evidence bearing more or less directly upon the question involved. The fact that the dividends were credited to the accounts of Mosher and Outcalt upon the company’s books while these proceedings were pending, is entitled to but little weight. The ownership- of the stock being in litigation, and the record of the stock being kept in the names of Mosher and Outcalt, and it being the duty of the company to hold the dividends until the ownership of the stock was determined, the fact of entering the dividends in the same account with the stock itself, would not be conclusive that the corporation, at the time, considered that the stock belonged to Mosher and Outcalt; nor would their conclusion in regard to the matter be binding upon the owners of the stock, and so protect the corporation as garnishee.
Time and space will not admit a complete review of the facts disclosed by this record bearing more or less directly upon this point. It must be conceded that the record is unsatisfactory. It may be that the plaintiff, by erroneous rulings upon the trial, has been deprived of an opportunity to frame the pleadings and furnish the evidence necessary to sustain the burden which the law casts upon him. These errors can not now be corrected in this form of procedure, for the reasons above indicated.
The findings of the trial court being supported upon the pleadings and the evidence preserved in the record, the decree properly entered thereon must be sustained. The judgment entered in this,court is vacated, and the decree, of the district court
Affirmed.