
    No. 20,732.
    James Stevenson et al., Appellees, v. The Board of County Commissioners of the County of Shawnee, Appellant.
    
    OPINION DENYING A REHEARING.
    Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.
    Opinion denying a rehearing filed August 3, 1916.
    (For original opinion of affirmance, see ante, p. 671, 159 Pac. 5.)
    
      W. E. Atchison, county attorney, for the appellant; W. P. Montgomery, and James P. Coleman, both of Topeka, of counsel.
    
      James A. Troutman, of Topeka, for the appellees.
   Per Curiam:

The defendants file a petition for rehearing. The fact that judgment was rendered in favor of the plaintiff on evidence was not stated in the former opinion of this court. After the demurrer to the petition had been overruled, the defendants were given leave to answer. They elected to stand on their demurrer. The journal entry of judgment recites that after hearing evidence on behalf of the plaintiffs the court rendered judgment in their favor.

This court decided most of the questions raised by the demurrer in favor of the defendants, but held the petition good as to certain facts therein alleged, which facts must be proved by evidence on a trial where they are put in issue. These allegations of fact are stated in the opinion, and it is on account of these allegations' that the petition was held good as against the demurrer. This court considered it neither just nor right that the defendants should be concluded on these questions of fact, although the defendants had been given an opportunity to answer and had deliberately elected to stand on their demurrer. It is right and just that they be given another opportunity to answer, if they desire to do so.

A rehearing is denied. The former opinion of this court is adhered to and the order therein made is confirmed.  