The opinion
SULLIVAN, J.,
Dissenting. — Bespondent contends, in his petition for a rehearing, that the only question of law presented on appeal was: Did a trust relation arise from a deposit of money in the Bunting bank by Storer, as state treasurer, and which had come to the receiver’s hands, which would allow the state to pursue and take it? It is contended that it never was claimed that a deposit by Storer’s predecessor in office, Bunting, could be shown, or was shown, as a basis for recovery in this action, or that there was any admission in respondent’s answer that would reheve the appellant from proving his allegations. That it appeared from the opinion of the court that an actual deposit of money belonging to the state was a necessity to the state’s recovery. That as there was no proof of Storer’s having made any deposit, the court then considered whether recovery could be had upon the evidence or admissions that Storer’s predecessor had deposited money there. And in support of this contention quotes from the opinion the following: “The respondent insists that the motion for nonsuit was properly granted on the ground of variance between the allegation and proof. It is true that the evidence shows that some, or all, of the money in question was deposited with C. Bunting & Co., bankers, by the former treasurer, and not by the present one. In this respect the petition is defective. But such defect is cured by the allegations of the answer, wherein it is alleged that such money was placed in said bank by C. Bunting, former treasurer, who gave the check therefor to Treasurer Storer.” And contends that the court misapprehended petitioner’s position in this, to wit, that it is not a variance between allegation and proof, but that it is a clear failure of proof. Also contends that the court mistakes the fact when it says: “It is true that the evidence shows that some, or all, of the money in question was deposited .... by the former treasurer, and not by the present *337 one.” And contends that all the testimony goes to what appears from the books only, and, on this subject, nothing of the'witness’ own knowledge. It is also contended that the evidence failed utterly in establishing the allegation that Storer made any deposit whatever as alleged. It is also contended that it was not shown where the money belonging to the state was deposited, and quotes the following from the testimony of the state’s witness, the receiver, to wit: “Mr. Bunting gave Storer two checks, one of which was drawn on the Capital State Bank at Boise and the other on C. Bunting & Co.’s Bank at Blackfoot. These two checks represented the funds in the state treasury at that time. I know this, because I examined the state treasurer’s books. I don’t know where the money was that belonged to the various funds. Storer gave Bunting a receipt for the checks.” It is also urged that the court evidently misapprehends the averments in the answer wherein the opinion states that the “petition is defective,” but that such defect is cured by the answer, and contends that the averments in the answer do not admit that Bunting, as state treasurer, made a deposit of state funds in said bank; and quotes the following from the answer: “Said receiver denies that the said pretended or any moneys mentioned in the said petition ever were or are now credited on the books of C. Bunting & Co., bankers, defendants, or that the same were ever received by said C. Bunting & Co., bankers, with full or any notice or knowledge that the said moneys belonged to the petitioner, the state of Idaho, or that any moneys were ever deposited by him at all.” “Further answering the said petition, said receiver denies that the said or any moneys whatever belonging to the state of Idaho ever came to his hands, as receiver or otherwise.” “There was a credit on the books of the said defendant bank to C. Bunting, as state treasurer, of a considerable sum of money,” etc., and, in folio 26, “His said predecessor gave him a check on the defendant bank for the full amount of money in his (not the bank’s) hands belonging to the state,” etc. And contends that said averments are all that is contained in said answer touching said subject, and that said allegations do not admit a deposit by Bunting, either directly or indirectly, by intendment *338 or by fair construction; that it denies that any deposit of the state money was ever made in said bank by anybody, at any time. The point made by the foregoing is that the proof failed as to the particular thing alleged in the petition, to wit, that the deposit was made by Storer, state treasurer, and that the defect in proof was not made good by admissions in the answer. It is also contended that the court erred in remanding the ease with instructions to enter judgment for the state. The appeal was from a judgment of nonsuit, granted on motion of the respondent. Said motion was made at the close of plaintiff’s evidence,'and before the defendant had put in any evidence whatever. It is contended that by remanding the case with instructions to enter judgment for the state the defendant is deprived of the right to make a defense on the merits and facts of the case; that such proceeding is not due process of law, and denies the defendant a substantial right — that of making his defense on the merits.
In Bagley v. Eaton, 10 Cal. 149 , it is held as follows: “It is not our practice to direct the entry of a judgment in the court below in actions at law, except when the facts have been found by the judge who tried the cause, or by the special verdict of a jury, or when, from the character of the action or pleadings, one of the parties is entitled to judgment without proof.” In Cooper v. Shepardson, 51 Cal. 300 , the court reversed the case, but declined to order final judgment, saying: “It may be that upon a new trial a different case will be made out.” Hayne, in his work on New Trial and Appeal (section 296), holds that, when all of the material facts are established in the court below, the supreme court, in reversing a judgment, may, in its discretion, direct final judgment. In the case at bar the material facts were not found by the court below. Judgment of nonsuit was entered against the plaintiff at the close of its evidence. The court found no facts upon which a judgment could be based in favor of the state; and in that ease this court must find such facts in order to direct a judgment against the defendant, who is respondent here. To do so would be to exercise original, rather than appellate, jurisdiction. Of course, a different question would be presented if, under the pleadings, *339 the appellant was entitled to judgment without proof; and in that case a trial court, on proper application, would allow the pleadings to be amended.
The opinion of the court is based on the ground that Bunting, Storer’s predecessor, deposited state money; and that conclusion is reached by holding that the answer cures a defective allegation in the complaint. On a careful re-examination of the pleadings, I am of the opinion that the answer does not admit that the predecessor of Treasurer Storer deposited said money in said bank. The admission that said bank-books show credit to said predecessor is not such an admission as would warrant the court in finding that said Bunting did make a deposit of state money when such deposit is specifically denied by the answer. The averment is that there was a credit on the books of the defendant bank to C. Bunting, as state treasurer, of a considerable sum of money. That admission is not sufficient to hold that Bunting deposited therein over $3.3,000 of the state’s money, or of any amount whatever, without proof.
While it is true the evidence introduced by the state tends to show that Bunting, as state treasurer, had a credit in said bank, and of the amount thereof, the defendant had a right, under his answer, to show that said credit was a fictitious one, or that no public money had, as a matter of fact, been deposited in said bank. This is not an action between the Bunting Banic-ing Company and the state, but against the receiver, who represents all of the creditors of said bank; and the creditors, through the receiver, have the right to make any legal defense that will defeat the state’s claim.
This court has in this case only appellate jurisdiction, and, as the court below has found no facts on which a judgment can be based, this court cannot usurp the jurisdiction of the nisi prius court, and in the first instance find facts on which to base a judgment. I do not think the pleadings are such as would warrant a judgment on them without proof. The cause should have been remanded, and the receiver given an opportunity to present his defense.
While it is true the receiver, as a witness for the plaintiff, testified that said ledger was a book of original entry of said *340 bank, it is not shown who made said entries, or that they are correct.
The opinion of the majority of the court on the petition for a rehearing presents an additional reason for an opinion in favor of the state that was not suggested in oral argument or by brief on the hearing of the case, and that is that the checks .deposited by Storer were “public money,” under the provisions rof section 6977 of the Revised Statutes. That point was not : mooted on the hearing of this ease, and it is only right and fair ■.to the respondent that he should be heard upon points on which dhe decision rests. If it be said the cheek was public money, and must be considered such in this case, it may be that the receiver will be able to return said cheek — “public money” — to the plaintiff, and thus return to the state the identical “public money” deposited by Treasurer Storer; and, if the state gets the identical “public money” which it deposited by its treasurer, it ought not to complain.
The circumstances' under which the case was presented to this court were most unfavorable, and the-importance and far-reaching effect of the decision demand that the parties should be fully and fairly heard, and I think a rehearing should be granted.