On the first trial the conclusions of law made by the court were "that judgment be entered in favor of the defendant, no cause of action, on the ground that notice of damage to the live stock was not given within 10 days after the arrival of the sheep at their des tination and before being co-mingled with other stock." On the second trial the conclusion of law was that judgment be entered in favor of the plaintiff in the sum demanded in the complaint. Judgment was entered accordingly, from which the defendant has prosecuted this appeal.

Seven alleged errors are assigned. Six relate to the findings of fact and one to the conclusion of law. The first pertains to the finding made that it was the duty of the defendant to provide places at reasonable distances along its route to afford the plaintiff reasonable opportunity to unload, feed, and water the sheep; the second that the defendant detained the sheep on the cars 72 hours without the plaintiff being afforded opportunity to unload, feed, or water them; the third that the defendant was negligent in detaining and holding the sheep at Schuyler, Neb., and in not moving them to Omaha, the place of destination; the fourth, that the sheep were shipped for the purpose of reaching the stockyards at Omaha on the morning of August 31, 1903, and that the defendant, by the use of ordinary diligence, could have carried them to that point by that time; the fifth, that had the sheep arrived at such place at that time, or at any time within several days prior thereto, the plaintiff could have obtained an average of five cents per pound for them; the sixth, that the court failed to find on the question whether the stipulation in the contract requiring a presentation of the claim for loss or damage within 10 days was "reasonable under all the circumstances attending the delays and losses complained of by plaintiff"; the seventh, "that the court erred in its conclusion

of the plaintiff except one. The defendant | from the findings of fact on the second trial. had alleged, and the court found, that the plaintiff and the defendant entered into a written contract by the terms of which it was stipulated, among other things, that unless claims for loss or damage or detention were presented within 10 days from the date of unloading the stock at destination, and before the stock had been mingled with other sheep, such claims should be deemed waived, and the defendant discharged from all liability. The substance of the material stipulations of the contract are set forth in our former opinion. We then held, in substance, that, when the various stipulations of the contract were read together and the contract considered in its entirety, the fair meaning of the contract and the ruling intention of the parties, as expressed by the plain terms of the contract, were that the defendant should not be liable in any event for ordinary negligence, and that it should be liable only for gross or willful negligence upon the presentation of a claim as stipulated for in the contract. We held that such a contract was void, as being against the policy of the law forbidding a carrier to contract against consequences of its negligence. We also held that, though the stipulation should be regarded valid, it nevertheless could not apply to the loss or damage sustained by plaintiff because of a change or drop in the market. We further held that in an action where there is a plea of a special contract in defense, limiting or conditioning the carrier's liability, the burden was upon the carrier, not only to show a valid special contract, but also to allege and prove facts and circumstances showing the stipulation to be reasonable; that the defendant had made no such averments and had not proven any such facts; that the finding which the court made that the stipulation requiring a presentation of the claim within 10 days was reasonable was a mere conclusion, and wholly unsupported by averments or evidence. We there said: "There being no allegation nor of law." proof of the reasonableness of the stipula- The complaint made of the first five findtion, the court on that ground erred in giv-ings is on the ground of insufficiency of eviing it effect." After the judgment of the dence to support them. In the first place, court below was reversed and the cause the appellant is not in a position to propercame on for a retrial before the district ly ask a review of the findings on such court, by agreement of counsel the transcript ground. Rule 26 (97 Pac. x) of this court, in of the evidence of the former trial was pre- part, provides that: "When the alleged error sented to the court as the evidence on the re- is upon the ground of the insufficiency of the trial of the cause. No other nor different evidence to sustain or justify the verdict or nor aditional evidence was offered by either decision, the particulars wherein the eviparty. The defendant again alleged no facts dence is so insufficient shall be specified.” showing that the stipulation in question was The necessity of and the reason for the rule reasonable, nor did it offer any amendment were pointed out by us in the case of Blue of its answer in any particular. The plead- Creek, etc., Co. v. Anderson et al. (Utah) ings and the evidence of both parties were 99 Pac. 444. No such, nor any, specification identical on both trials. The court on the of particulars was made. But, in as much second trial made the same findings as were as the same evidence is before us now as made on the first trial, except the finding, or was before us on the former appeal, and conclusion, that the stipulation in question since the question of insufficiency of the eviwas "a reasonable provision under the cir- dence with respect to these findings was not

viewed evidence. We find it sufficient to | involved in this case. Both cases were prossupport the findings.

With respect to the sixth error assigned, of which complaint is made because the court failed to find on the question whether the stipulation requiring a presentation of the claim was reasonable or not, it is urged that it was the duty of the court to find on all the issues. It is true it was the duty of the court to make findings with respect to all the material issues raised by the pleadings, but on the former hearing we held that the burden was on the defendant to allege and prove facts or circumstances showing the stipulation to be reasonable; that its answer contained no allegations, nor was there any proof upon the question of the reasonableness of the stipulation; that the rea- | sonableness of the stipulation could not be determined from the face of the contract; that the finding which the court made that the stipulation was reasonable was a mere conclusion of law without evidence in support of it; and that no facts were alleged, proven, nor found from which the reasonableness of the stipulation could be deduced. Notwithstanding our holding in such regard, nevertheless the defendant on the second trial failed to amend its answer, and did not offer any evidence other than that adduced on the first trial. Upon these identical pleadings and the evidence, we held the stipulation in question ineffectual. Futhermore, on the same pleadings and evidence, we also held that the special contract in question was void because the contract, when considered in its entirety, exempted the defendant | from liability for ordinary negligence, and rendered it liable only for gross or willful negligence on the presentation of a claim. These holdings on the second appeal of the same case between the same parties and on the identical pleadings and evidence are the law of the case, which not only bind the litigants, but ourselves as well.

In this connection counsel for appellant now urge: (1) That on the first appeal there was no bill of exceptions and no evidence properly before us; and (2) that the ruling which we then made with respect to the invalidity of the contract was upon a question not presented nor submitted to us. We think both questions were presented and submitted on the first appeal. On that appeal the defendant, who was then the respondent and who is now the appellant, urged that there was no bill of exceptions, and that any assignment of error depending upon the evidence could not be considered by us. While we did not expressly hold in our written opinion that the evidence was then properly before us, still our holding that there was no evidence adduced showing the reasonableness of the stipulation necessarily implied such a holding. The cause of action in the case of Fell v. U. P. Ry. Co., 32 Utah, 101, 88 Pac. 1003, grew out of the same transaction as is

ecuted against the same defendant, who was represented by the same counsel, and were tried to the court below without a jury about the same time. Both plaintiffs were represented by the same counsel. In the Fell Case the plaintiff, and in the Houtz Case the defendant, obtained a judgment. Counsel for the respective parties in both cases then stipulated in writing which was signed and filed by them, that "motions for new trial will not be filed in either case. Either party can use transcript of evidence in respective cases on hearing on appeal. Such transcript will be stipulated to be the whole evidence adduced in the respective cases without certificate from judge." In the Fell Case the defendant, and in the Houtz Case the plaintiff appealed. In the Fell Case the defendant, and in the Houtz Case the plaintiff, relied on this stipulation for the authenticity of the presented record of the evidence. In the Fell Case no question was raised with respect to the stipulation nor the authenticity of the presented record. The transcript of the evidence was there deemed to be properly before us, and was considered by us. In the Houtz Case on the first appeal the defendant urged that, notwithstanding the written stipulation entered into between counsel, the transcript of the evidence was not properly before us, and could not be considered by us. While we recognize the rule that to properly present the evidence on appeal it ought to be presented by a bill of exceptions, allowed, settled, and certified to by the judge who tried the case, and not by stipulation of counsel, still we were of the opinion that to grant the defendant's request was, in effect, to permit it to take an undue advantage of its stipulation. There can be no doubt that the stipulation was entered into by the defendant as well as the plaintiff for the express purpose of dispensing with a settlement of a bill of exceptions and to present and authen ticate the record of the evidence by the stip ulation. While we may decline to permit the parties to present a record in such manner, still, there being no doubt nor controversy as to the meaning of the stipulation and the purpose for which it was entered into, neither party is in a position to complain if the stipulation is given effect and held sufficient by us for such authenticity and presentation. When we regarded the evidence as being properly before us, we did only what the defendant and the plaintiff stipulated we might and should do. We then thought that the transcript of the evidence was properly before us, and so, in effect, determined. Whether we were right or wrong in such matter and in denying the defendant's request in such particular is not now open to inquiry on this appeal. Though we were wrong in such holding, it nevertheless would seem that no prejudice resulted, for the iden

tical transcript of the evidence which the | tice, contemplate relief to the carrier from plaintiff produced and had filed as the rec- the final results of its negligence; or is it a ord on the former appeal, and which was provision looking toward the furnishing of then urged by the defendant was not prop- evidence of the complained of wrong, and a erly authenticated and before us, is now waiver of plaintiff's claims?" The defendant produced and filed by the defendant, and is in its brief, after quoting from text writers vouched for by it as a correct transcript of and citing numerous cases, also said: "In all the evidence; that is to say, the very each of these cases, and in many others cited transcript which was filed here on the form- by the text-books above referred to, the coner appeal was, by agreement of counsel, pre-tract under consideration was the subject of sented to the court on the retrial of the inquiry, and in each instance the same was case as and for the evidence adduced, and upheld as a valid provision." On the rehearsubsequently that identical transcript, with ing of the case no other question was argued the matters and proceedings therein connor presented by either counsel. We think tained and recited, was allowed, settled, and the question decided by us on the former apcertified to as and for the bill of exceptions, peal was properly before us. That ruling on and as containing all the evidence. While a second appeal between the same parties, our former ruling cannot be justified nor and on the same pleadings and evidence, cansupported by such subsequent authenticity not now be inquired into nor reviewed by us. of the transcript, stil, because of such sub- The defendant, both on the original hearing sequent action, the matter, if at large and and on the rehearing of the case on the foropen to inquiry, is no longer of much sig- mer appeal, had its day in court on that quesnificance.

In regard to the second point, it will appear from the record on the first appeal that a judgment was rendered in favor of the defendant upon the sole ground that the plaintiff had failed to present a claim within 10 days after the sheep arrived at destination, and as stipulated for in the contract pleaded and relied on by the defendant. Every other issue and matter of fact was found in plaintiff's favor. The principal assignment of error, and the brief of counsel on both sides on the merits, chiefly related to the finding or conclusion of the court with respect to the stipulation in the contract and the ruling of the court in admitting the contract in evidence. On the part of the plaintiff it was urged, on the original hearing, that the contract was invalid, and the stipulation unreasonable; on the part of the defendant, that the former was valid and the latter reasonable. After a submission of the case on that hearing, we in a written opinion filed by us then said: "The only question presented by the appeal is with respect to the validity and effect of the contract." A petition for rehearing was filed. The petition was granted, and the case was reargued and resubmitted. Neither in the petition for a rehearing nor on the reargument and resubmission of the case was it then urged that we had ruled the case on a point or question not presented and not submitted.

tion.

The judgment of the court below is affirmed, with costs.

FRICK and MCCARTY, JJ., concur.

(35 Utah, 213)

BRISTOL V. BRENT (ATCHISON, T. & S.
F. RY. CO., Garnishee).

(Supreme Court of Utah. Jan. 29, 1909.)
1. APPEAL and Error (§ 80*)-DECISIONS RE-
VIEWABLE-FINAL JUDGMENT-TEST OF FI-

NALITY.

purposes of appeal is not necessarily whether
The test of the finality of a judgment for
the whole matter involved in the action is con-
cluded, but whether the particular proceeding
or action is terminated by the judgment.1
Error, Dec. Dig. § 80.*]
[Ed. Note. For other cases, see Appeal and

2. GARNISHMENT (§ 199*) — VACATING PRO-
CEEDINGS-EFFECT.

The purpose of garnishment proceedings being to seize and hold property pending the action out of which the writ issued, the dismissal of the garnishment proceedings discharged the garnishment lien.

[Ed. Note. For other cases, see Garnishment, Dec. Dig. § 199.*]

3. GARNISHMENT (§ 73*)-NATURE OF PROCEED

INGS.

Garnishment proceedings are not independbegun at or before the garnishment proceedings ent proceedings, but merely in aid of an action were instituted, and, where the defendant is personally served or appears voluntarily in the The same contentions were made on the re-dependent on the garnishment proceedings. main action, the judgment therein is in no way argument of the case as were made on the [Ed. Note.-For other cases, see Garnishment, original hearing. All the cases cited by both | Dec. Dig. § 73.*] parties on the merits of the case were cited 4. GARNISHMENT ( 199*)-DISCHARGE OF PROin support of such respective claims of counsel, and in support of their respective contentions on the question of the burden of proof. In its brief on rehearing the defendant stated the proposition before the court to be as follows: "Does the clause of the contract in question, which provides for the giving of no

CEEDINGS EFFECT ON PRINCIPAL ACTION.

In an action on a note against a nonresi

dent defendant, aided by garnishment, where he did not voluntarily appear, the principal ac no personal service was had on defendant and

449, 85 Pac. 626;' Winnovich v. Emery, 33 Utah, 345, 'Honerine, etc., Co. v. Tallerday, etc., Co., 30 Utah, 93 Pac. 988.

tion became one in rem against the garnished, only question presented and submitted at this property, so that the discharge of the garnish- time. ment proceedings would terminate the principal action.

[Ed. Note.-For other cases, see Garnishment, that: "From all final judgments of the disCent. Dig. §§ 140-142; Dec. Dig. § 199.*] trict court there shall be a right of appeal 5. APPEAL ANd Error (§ 71*)-DECISIONS RE- to the Supreme Court." The statute (section VIEWABLE-FINAL ORDER-ORDER DISMISS-3113, Comp. Laws 1907) provides that: “Mo

Action by G. E. Bristol against Noah Brent, and another as garnishee. dismissing the garnishment proceedings, concluded, but whether the particular proplaintiff appealed. On motion to dismiss ap-ceeding or action is terminated by the judg peal. Motion denied.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

In the case of National Bank v. Chase, 71 Iowa, 120, 32 N. W. 202, the court held that in proceedings in attachment by garnishment the plaintiff has the right to appeal from an order dismissing the garnishee before final judgment. The court there said: "We think the plaintiff has the right to appeal from the order discharging the garnishee. ** It was an order which affected the substantial rights of the parties. The discharge of the garnishee effectually disposed of all it claimed in the case. The discharge was an adjudication that the plaintiff had no right to the money in the custody of the garnishee."

* *

main action, neither the action nor the judging) must have connection with an action ment in any manner depends upon the at- commenced or judgment recovered, and then tachment or garnishment, although the at- it becomes almost an action of itself. It is tachment and garnishment depend upon the such in substance though not in form. If main action. In such case the judgment in it must have a name, we will call it a special the main case is precisely the same whether | proceeding." the attachment or garnishment is dismissed or not. This court could neither revise nor modify the final judgment in the main action in any particular in consequence of any error in the attachment or garnishment proceedings. In this instance, however, when the court discharged the garnishee and dismissed the garnishment proceedings, no personal service was had on Brent, nor had he then made a voluntary appearance. Upon the filing of an affidavit showing that the defendant Brent was a nonresident of this state and a resident of California, an order was made on the 1st day of February, 1908, for publication of summons. Personal service of the summons was had on him in California on the 7th day of February, 1908. The statute (section 2950, Comp. Laws 1907) provides that such service is equivalent to publication and deposit in the post office, and is complete on the tenth day after actual service. Upon such a constructive service jurisdiction to proceed in the main action is acquired only by a procedure against property of the defendant within the jurisdiction of the court. there is no appearance of the defendant, and no personal service of process on him within the state, the case becomes a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. If, in such case, the attachment is dissolved or garnishment proceedings dismissed, no further proceedings can be had in the action, and a judgment in the main action is thereby prevented, unless the plaintiff shall be able to find and seize other property of the defendant within the jurisdiction of the court. Such was the state of the proceedings when the court discharged the garnishee, the effect of which ruling was to prevent the plaintiff from further proceeding in the action and to prevent a judgment. A ruling, the effect of which not only ends the controversy between the plaintiff and the garnishee, but which also substantially terminates plaintiff's right to further proceed in the main action because that which conferred jurisdiction on the court to proceed was taken away by the ruling, must, in its essential nature, be final. If, in such instance, as is in effect urged by respondent, the plaintiff cannot have the ruling reviewed until he obtains a final judgment against the defendant in the main action, he is wholly unable to have it reviewed, for the thing which entitled him to proceed to a judgment was taken away and thereby a judgment prevented.

In the case of Turpin v. Coates, 12 Neb. 321, 11 N. W. 300, the court said: “We have no doubt that an order discharging garnishees is an order affecting a substantial right made in a special proceeding. Such an order, in many cases, would entirely defeat the collection of a debt. Neither is it necessary to wait until final judgment before such order can be reviewed. No judgment can be renIf dered against the garnishees until after final judgment against the debtor, but, if the attachment is not dissolved, the creditor has a right to the security obtained by the proceedings in garnishment for the satisfaction of any judgment he may obtain."

In the case of Bebb v. Preston, 1 Iowa, 460, where the court held the ruling discharging a garnishee final and appealable, it was

The following cases also support the same doctrine: McConnel v. Rakness, 41 Minn. 3, 42 N. W. 539; Strickland v. Maddox, 4 Ga. 393; Haebler v. Bernharth, 115 N. Y. 459, 22 N. E. 167; Quebec Bank v. Carroll, 1 S. D. 1, 44 N. W. 723.

It is true, as observed by the respondent, that in some of these cases the statute provided for an appeal not only from final judgments but also from final orders affecting a substantial right in a special proceeding and determining the action and preventing a judgment. While the statutes relating to appeals were somewhat broader than is our Constitution, still the essential thing before the court in these cases was the question of the finality of the order appealed from. Here, as there, the garnishment proceedings involved a controversy between the plaintiff and the garnishee. As between them the ruling made discharging the garnishee and dismissing the garnishment proceedings ended that controversy, and as between them, and as to such proceedings, was a judgment which, in our opinion, was final for the purpose of an appeal.

There are cases which hold that neither a ruling refusing to discharge nor discharging an attachment or garnishment is appealable, Mr. Elliott, in his work on Appellate Procedure, at section 81, says: "The weight of