The opinion of the majority in this case, as I interpret the record, proceeds upon the erroneous assumption expressed in the first sentence thereof, that "the ultimate question is whether the alleged cause of action is one triable on the law or the equity side of the court." This is not the question in the case. No such issue is directly or indirectly involved, as I view the record. The petition of plaintiffs is entitled "at law." Judgment against the defendants in the sum of $54,708.51 is asked. Defendants have filed no pleading, and necessarily have not, therefore, tendered an equitable issue. Considered abstractly, the general rules of law and equity stated in the opinion may, for the purpose of this dissent, be accepted at their full value. The difficulty is that they have no relevancy to the sole question presented for review. All defendants, either in groups or separately, filed motions to transfer the cause of action to the equity side of the docket, upon the ground that it appeared upon the face of the petition that the relief sought is inequity, and not at law.
Much significance is given to the following portion of the prayer of the petition: "And for such other and further orders and judgments of court as will do justice to the plaintiffs in the premises." Plaintiffs in argument disclaim that by the foregoing language they have intended to seek equitable relief. So far as it may, if at all, be considered as seeking relief in equity, plaintiffs absolutely repudiate it. Over and over again it is stated in argument that they neither seek nor desire relief upon any proposition in equity. The case is peculiar and rather unusual. The psychology of counsel for the respective parties is easily understood. The plaintiffs obviously do not desire to submit the facts which they can prove to the scrutiny and conscience of a court of equity. On the other hand, the defendants would avoid the possible hazard of a trial to the jury. The full purport and effect of the opinion of the majority are to make out a case for the plaintiffs in equity, although contrary to their wishes. Satisfied that this has been accomplished, they are, by the result, compelled, against their will, to accept a reversal.
First, let it be conceded that plaintiffs could have stated a cause of action in equity. Did they? What issue pleaded, upon any theory, requires for its proper disposition the interposition of a court of equity? The relief asked is a money judgment. This *Page 639 must be kept in mind. There is neither allegation nor prayer for an accounting, nor for the partition of personal property. If the administrator of the H.A. Lyon estate has property in his possession belonging to plaintiffs, an order may readily be procured in probate for its restitution. The theory of the petition is that the administrator, as trustee, has in his possession the amount named, and that he refuses to account therefor to them: that is, that he has converted the same to his own use, or to the benefit of the estate. Perhaps this issue might well also have been tried and determined in probate. If H.A. Lyon, at the time of his death, held any property as trustee for Viola, he was, under the allegations of the petition, a trustee of an express trust. The allegations of the petition are that H.A. and Viola orally, or in writing, specifically agreed to pool their efforts and to ultimately share the corpus and profits of their joint efforts. The report of the administrator shows personalty in the form of cash or notes aggregating just double the amount for which judgment is asked. The administrator of the H.A. Lyon estate stands in the relation to the property of trustee. There is no reason why plaintiffs may not, if the facts exist, prove every allegation of their petition in an action at law. If they did so, their recovery would be one half in value of the corpus of the estate in the possession of the administrator or trustee. No accounting is sought, nor is any necessary. Partition of personalty, specific performance, or cancellation of some instrument is not sought or asked. All plaintiffs seek is a judgment for a specific amount which they allege to be due them. Can the right of the plaintiffs to prove the alleged contract between Viola and H.A. Lyon at law be questioned? Is there any reason why they may not prove what property, if any, was the subject of the trust and is in the custody of the administrator? If a trust existed, and H.A. Lyon held the property at the time of his death as trustee, the trust was express, and there is no reason why he may not be sued at law for the amount due. The interposition of a court of equity is not necessary at this point. Suppose, however, that plaintiffs have stated a cause of action on which no recovery may be had at law. How is that the business of the defendants? If plaintiffs have wholly misconceived the proper forum, and persist in the error, the worst that can happen to the defendants is to win their case. The opinion seeks to point out the proper course for plaintiffs to *Page 640 pursue. Assume that they should have taken the designated course, rather than to attempt to prosecute the action at law. Surely, the defendants cannot be prejudiced by this error. Furthermore, it hardly needs to be stated that the plaintiffs can have no equitable relief in the law action. It is significant, and must be kept constantly in mind, that it is the defendants who are seeking to remove the cause of action to equity. It has long been settled in this state that, where only a money judgment is sought, and no equitable relief is prayed, the defendant may not, on motion, have the cause transferred to equity for trial. Boycev. Allen, 105 Iowa 249; Price v. Aetna Ins. Co., 80 Iowa 408;Lynch v. Schemmel, 176 Iowa 499; Miller v. Hawkeye Gold DredgingCo., 156 Iowa 557; Darst v. Fort Dodge, D.M. S.R. Co., 189 Iowa 632; Mitchell v. Beck, 178 Iowa 786; Watson v. Bartholomew,106 Iowa 576; Hanan v. Messenger, 168 Iowa 507; Newman v. CovenantMut. Ben. Assn., 72 Iowa 242.
The portion of the prayer to which the opinion gives particular emphasis is not only repudiated by the plaintiffs, but is wholly without significance or effect in the law action. Plaintiffs are not asking the transfer. It may be that plaintiffs may have cause to regret that they chose the law, instead of the equity, forum; but, until they seek equitable relief, they should be permitted to remain on the law side of the docket, no matter how fatal their determination may be to them. The motions of the defendants, in my opinion, have no merits, and should have been promptly overruled. It is not the office of this court to force plaintiffs into a forum they do not seek, nor to aid them to present a cause of action on which they may ultimately prevail, but which they now scorn. They have made their choice. They are entitled to proceed in the forum selected. It is immaterial that disaster may follow.
I am in favor of disposing of the case upon the sole and only question presented by the record, to wit: Did the court erroneously sustain the several motions to transfer the cause of action from the law to the equity docket? I think the ruling was erroneous, and I favor a reversal. *Page 641