¶1On Motion for Rehearing
¶2Appellee, Myers, in his motion for rehearing contends that the State failed to prove that the funds involved are a part of a public charitable trust which it must administer, and he challenges the parts of the opinion which so state. Appellee correctly points out that all the parties, except the State, deny that the funds are a public charity.
¶3Appellee has failed to give the correct force to the trial court’s order of severance of causes of action. The original plaintiffs prayed' that the affairs of the corporation be liquidated and distributed among the members of the corporation. The State challenged and defended against such a distribution of the assets on the grounds that the corporation was a defunct charitable corporation.
¶4Whether the assets of the corporation are the assets of a defunct charitable corporation was severed from the action involved in this appeal. The order of severance, the judgment of the court, and the evidence adduced on the trial, demonstrate that the ultimate disposition of the funds is not involved in this appeal. This appeal concerns the severed cause of action which relates to the dispute over what funds are involved at all. The appellee states that the original opinion assumed the fact that the funds are charitable funds, and in that he is exactly correct, for that issue is yet to be determined.
¶5Actually the State did make prima facie proof. ■ The president of the defunct corporation testified without objection about *331the original incorporation, stating that it was organized as a non-profit, charitable and benefit association, that it spent up to a thousand dollars a year for those purposes, and that the Secretary of Staté has suspended the charter of the corporation.
¶6Though the disposition of the funds will be decided in the severed action, ap-pellee would compel the State to prove it in this action as a predicate to its right to appear. This action concerns the matter of protecting funds; the severed action will determine to whom they belong. It would defeat the objects of the severance to require proof of the latter in the present suit.
¶7The motion for rehearing is overruled.