dissenting.
Subsequently, upon an application for a rehearing, the following additional opinion was filed:
Per Curiam:This is an application, by Peck, for a rehearing. The application must be denied.
When the case was considered, we found that the circuit court had found the issues of fact against Peck, and rendered judgment thereon. The Appellate Court reversed this judgment, making no remanding order.
On examination of the record of the Appellate Court, we found that court did not “ recite in its final order or judgment the facts as found ” by that court. The statute provides, that “if any such final judgment of the Appellate Court shall be made as the result wholly or in part of a finding of facts * * * different from the finding of the court from which the cause is brought,” * * * it shall be the duty of such Appellate Court “to recite in its final order, judgment or decree the facts as found.”
In the absence of such recital, this court could not properly decide the case upon the hypothesis suggested, that the judgment of the Appellate Court was founded, in any respect, upon a finding of facts different from the. finding in the court below. We, therefore, examined the questions of law found in the record of the circuit court and found no error therein.
[Finding no error of law in the record of the circuit court, and no error of fact being shown in the only manner provided by law for showing the same, the judgment of the Appellate Court was necessarily reversed. A copy of the opinion of the Appellate Court was brought to our attention indicating that the Appellate Court did take a view of the facts different from the findings in the circuit court, and we were asked to affirm on that ground. We are not at liberty, in deciding a case, to look beyond the record, and hence could not properly consider the opinion of the court for such purpose.
We therefore remanded the cause to the Appellate Court without specific directions, leaving the case in such condition that the Appellate Court might take action in accord with the law .as laid down by this court. If, when the case comes again before that court, the facts are held by the Appellate Court to be different from the finding in. the circuit court, that court may, of course, found its judgment upon such different finding, and the facts so found in such case must be recited in the judgment. If the facts be found by the Appellate Court in accord with the finding in the circuit court, in such case the judgment of the circuit court should, of course, be affirmed by the Appellate Court.
It will thus be seen that our failure to pass upon the question relating to the alleged payment is no ground for a rehearing.
Again, a rehearing is sought upon the ground that (as is claimed) the judgment of Thayer against the coal company was collusive and unjust. This, too, is a question of fact. And as to the question whether Peck can be permitted, as garnishee, to attack that judgment, we think he can not; and if he can attack that judgment as a subscriber to the stock or as a shareholder, he must do that in a court of chancery.
Finding no sufficient reason for a rehearing, the petition is denied.
Petition denied.