¶1I concur in so much of the foregoing opinion as holds that the action in the name of the state cannot be maintained. It should unquestionably have been brought in the name of the county, although instituted by the direction of the state auditor, under the statute.
¶2But as to the residue of the opinion of the majority of the court I must dissent, and, briefly stated, for the following reasons: 1. Under the pleadings, in my opinion, the burden of proof was not on the state, but on the defendants. 2. But whether the burden of proof were put upon the defendants or not there was ample testimony to support th'e verdict.- As to the burden of proof, an examination of the pleadings will show this to be their condition, viz.: the petition sets forth in detail an itemized account of all the taxes received by the defendant Albertson, as treasurer, belonging to the various state funds, followed by an explicit statement of the full amount paid over by him to the state treas*439urer, as shown by the several vouchers returned by him to the county clerk, as the statute directs, for record. In this statement of taxes collected, the several dates when, and the names of the various persons from whom, they were received, are particularly given. This statement of the account between Albertson and the state shows the exact balance in his hands for which the action was brought.
¶3In the answer there is no denial of the correctness of any item of this long account, and it must be taken as true — or at least should be, under the rule of the civil code — that material allegations of the petition, not controverted by the answer, “ shall, for the purpose of the answer, he taken as true.” The defendants contented themselves by alleging in the most general way payment by Albertson to the state treasurer of all funds which he had received belonging to the state. This, in addition to being a mere conclusion of fact, with nothing whatever alleged to support it, was denied by the reply, which, according to my understanding of the rules of pleading, threw the burden of proving such payment upon the defendants, and if they failed to make good the averment the plaintiff must recover.
¶4As to the evidence, all I care to say is, that upon all material matters there was but little real conflict, and in-my opinion fully warranted the verdict returned by the jury, independently of the effect which I would give to the averment of the petition. With the petition admitted, there is not the shadow of doubt, in my mind, that the verdict was right, and should be upheld.