Denied November 24, 1914.
On Petition for Rehearing.
(144 Pac. 82.)
Department 2. Mr. Justice Eakin delivered the opinion of the court.
The petition for rehearing insists that this court should make final decree in the case without sending it back; but the trial in the Circuit Court was presented upon an entirely wrong theory of the law, and *186the case being finally submitted on such theory, it came before this court upon issues not properly involved. The case was disposed of upon a motion to dismiss the suit. The alleged partnership estate, if the complaint be true, is large, and the proper issue not having been raised, there might be a wrong done the estate if the present decree be affirmed. Equitable principles seem to require that the case be sent back to the Circuit Court that.it may be properly presented. The real issue, if properly made, was lost sight of at least by appellant. In denying this motion we do not want to appear to approve appellant’s construction of the opinion.
The petition is denied. Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.