With reference to the finality of the judgment I concur in the view expressed by the Chief Justice in the original opinion. It may be conceded that the conclusion reached is not in harmony with general rules heretofore announced by our courts for testing finality. But these rules were announced in proceedings in personam or in rem, such as attachment or sequestration, where it was not only practicable but proper and necessary that the final sentence and decree of the court be incorporated in one judgment. In the present case jurisdiction of Wells Fargo Co., if any, is not in personam, but in rem, by virtue of the ancillary proceeding in garnishment. Under the practice, the garnishment is a separate suit, and it is not contemplated nor is it always practicable to dispose of the garnishment or render judgment therein contemporaneously with the disposition and rendition of judgment in the main case. If the garnishment be contested, the judgment therein is necessarily rendered subsequent to the judgment in the main case.
In a proceeding against a nonresident without personal service, but in which a writ of garnishment has been issued and served, the court in the main case can go no farther than to establish the demand against the defendant, leaving the enforcement thereof to be provided for in the separate judgment which may then or subsequently be rendered in the garnishment suit. This in effect is the judgment which was rendered against Wells Fargo Co. It being the only proper judgment which the court could render upon the final hearing in the main case, it should be regarded as a final judgment within the meaning of article 2078, Revised Statutes, granting the right of appeal from final judgments only.
Any other view of the matter would effectually deny to all parties in the main suit the right of appeal in cases arising in the manner now presented. If the contention of the American Railway Express Company be correct, then it would follow that, had the court below rendered judgment against that company for the amount of the verdict, and rendered judgment against Wells Fargo Co. the same as was rendered, then the American Railway Express Company could not appeal because a final judgment as to Wells Fargo Co. had not been rendered. In my opinion such an application of the general rules testing the finality of judgments in personam or in rem, as in attachment or sequestration, would be wholly inadmissible.
With respect to the issue of the liability of the American Railway Express Company for the debts of Wells Fargo Co., whether arising in tort or upon contract, the writer is of the opinion that the ruling of the Kentucky Court of Appeals in American Railway Express Co. v. Commonwealth, 190 Ky. 636, 228 S.W. 433, is correct. The undisputed facts in the present case bring it within the ruling there made, for which reason I concur in the reversal and rendition of judgment against the American Railway Express Company.
The writer does not concur in the other reason assigned in the original opinion for the reversal and rendition. In my opinion the evidence presents no assumption by the American Railway Express Company of the debts of Wells Fargo Co., except such as is imposed by law under the rule announced in the Kentucky case.
As to such other reason, the evidence viewed in its aspect most favorable to appellant presents no more than an issue of fact. Under the judgment it is presumed that such issue was found by the court in favor of the American Railway Express Company. This view of that theory would not even require remanding for retrial, because appellant made *Page 88 no request for the submission of this issue to the jury. Article 1985, R.S.
I cannot concur in the contention made in the motion for rehearing that, by the reversal and rendition herein, the American Railway Express Company has been deprived of its day in court, its right to have all issues of fact upon which its liability is predicated passed upon by the jury, and its constitutional rights thereby violated.
The American Railway Express Company was brought into court upon a petition asserting a personal liability against it. It answered and appeared by its counsel. A jury was impaneled and sworn, and nine issues of fact were submitted by the court to the jury. Our statutes carefully protect the right of a litigant to have every disputed issue of fact submitted to the jury. The American Railway Express Company did not request the submission of a single issue. If it desired the submission of any issue arising in the case, it should then and there have requested it. The issues which the jury found, established a liability in the sum of $50,000 upon the part of Wells Fargo Co. to the plaintiff. The facts upon which rests the liability of the American Railway Express Company for the payment of this demand are undisputed. There is no suggestion and nothing to indicate that they have not been fully developed.
The power and duty of this court to reverse and render the proper judgment upon this state of facts need no citation of authority.
For the reasons indicated, I concur in the disposition made of this appeal, and in overruling the motion for rehearing.