MOTION FOE REHEARING.
September 22, 1881, the plaintiffs in error filed a motion for a rehearing of the above case, which motion the court heard at its session in November, 1881, and at its session on January 5, 1882, filed herein the opinion, infra.
The opinion of the court was delivered by
Horton, C. J.:In the preparation of the original opinion filed in this case, we mistook portions of the record. A reexamination of it discloses that the action was dismissed as to Bowman after the plaintiff had closed her evidence-in-chief, and that Borden was not a party to the contract under which the money was placed in the hands of Bowman to be retained until the rights of the various parties thereto had been determined. This materially changes the relations of Borden to the action, and materially affects his rights therein. We assumed in the opinion that “all the parties to the contract treated the money deposited with Bowman as a fund in lieu of the sum loaned to Fry.” This is incorrect as to Borden; and the law as declared in the former opinion, that “had the contract between the parties for the deposit of the money not been entered into, we do not intimate that Sarah A. Noble would have any cause of action against either Borden or Bowman,” is specially applicable to Borden. He was not a party to any of the arrangements whereby Myers was to be released from the payment of the money into court under the garnishment proceeding, nor did he enter into any agreement or contract whereby the money deposited with Bowman was to be deemed a fund in lieu of the sum ordered *603by the justice to be paid by Myers. There was no allegation in the petition that Borden colluded with Myers in regard to his answer; and as Borden had nothing to do with the making •of the contract between the Nobles, Myers and Bowman, the petition did not state facts sufficient to constitute a cause of action against him, and the defects in the petition -were not oured by the answer of Borden. Under the allegations of the pleadings, Borden was entitled to judgment; and therefore the admission of evidence under the petition, the instructions of the court, and the rendition of the judgment against him, were all erroneous. The parties to the contract had no right to compel Borden to treat the money deposited as a' fund in order to draw him into litigation over it, as he had no interest whatever in that particular money. The money which Borden claimed was a debt, and the fund in the hands of Bowman is not the same property or the money to which Borden asserts claim. We declared in the former opinion of •this case, that the order requiring Myers to pay the money into court as the property of A. B. Noble, would not protect him against a recovery on the part of Mrs. Sarah A. Noble. As Myers had assumed the indebtedness of Fry to her, and agreed to pay her $165, and as she accepted such agreement and discharged Fry from all liability, any answer of Myers before the justice could not affect the rights of Mrs. Noble, nor could any order of the justice in such a proceeding deprive her of her claim against Myers.
We are obliged to counsel for calling our attention to our misconstruction of the purport of the record; and while the law of the case is sufficiently declared in subdivision 1 of the syllabus, the fact that Borden had nothing to do with the making of the contract of the Nobles, Myers and Bowman, and never assented to it in any way whatever, requires the judgment of the court below to be reversed, instead of being affirmed. The order, therefore, will be that the judgment be-reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring.