On Motion for Rehearing.
Both parties have filed motions for rehearing, the appellee on the ground that, Wallace having the right to withdraw his answer and the waiver of exemption being incorporated therein, there was no error in the action of the court in excluding said answer, as it was an abandoned pleading. It is true that Wallace had the right to withdraw his answer, but he could not prevent his adversary from introducing such parts of said abandoned pleading as constituted an admission against the pleader. The rule is well settled that an abandoned pleading may be introduced by the opposite party for the purpose of proving admissions against interest contained therein.
The appellant, in an able and vigorous motion, challenges the holding of the court that the evidence was not sufficient to sustain the jury’s verdict, declaring the money to be the community property of Wallace and his wife, and states that the holding amounts to a declaration that money deposited in the bank in the name of the wife becomes, as a matter of law, community property, and that there was nothing in appellant’s pleading’ suggesting the issue of a gift by Wallace to his wife. Appellant has either misconstrued our opinion, or we have not made the matter clear, and probably the latter.' There was no averment in the pleadings to the effect that the transactions between Wallace and his wife constituted a gift, but the pleadings of both parties clearly showed the proceeds of the insurance policy were exempt from Wallace’s debts, and the cheek therefor was indorsed by him and delivered to his wife and deposited-in the bank in her name, with the husband’s consent, with directions to honor only her checks against it, and that thereafter she exercised ¿exclusive dominion over the money, and at the time the transaction occurred she was claiming that the property destroyed was her separate property. The pleading that the money was deposited in the bank, with his consent, in the name of the wife, and that it was the proceeds of exempt property, under the statute noted prima facie, raised the issue that the deposit constituted the money the separate property of the wife. Appellant introduced no evidence contradicting a pre*641sumption arising from the facts noted, but the evidence introduced by appellant was consistent only with the proposition that the transaction constituted a gift to the wife, and this is all that is declared in the original opinion. The prima facie case thus made could have been rebutted in a good many ways if the evidence had been available. It might have been shown that Wallace and his wife were in the habit of carrying said community funds in the bank in her name. Or it might have been shown that Wallace believed that the money would be subject to garnishment for his debts and was induced by such belief to deposit the money in the name of the wife. But the only reason suggested by this record for the course pursued was that she was claiming the proceeds of the check as her separate property. There is no suggestion in the original opinion that this court foreclosed the issue, if raised by evidence upon a second trial, as to whether the deposit in the bank was the separate property of Mrs. Wallace or the community property of Wallace and his wife.
Both motions are overruled.