The opinion
SANBORN, Circuit Judge
(concurring). This action was by the same party and for the same cause from its inception to its close. It was an action in behalf of the state to recover moneys of the state. The treasurer of the state instituted the suit, but he brought it in his representative capacity in behalf of the state, and not for himself. If he had recovered, the state would have received the benefit of the judgment he obtained. The action might have been maintained by the treasurer in his representative capacity (McIntosh v. Johnson, 51 Neb. 33 , 70 N. W. 522 ), or by the state itself in its own name. In either case the real plaintiff would have been the *183 same. There was, therefore, no change of the real party plaintiff, and hence neither error nor prejudice by the substitution of the state for its representative, the treasurer, and for this reason the judgment should be affirmed.