(dissenting). — I agree to the decision in so far as it releases the clerk; but can not .consent to the finding ’as to the other defendants, who as junior lien-holders took and appropriated a fund upon which plaintiff had a prior lien. That' an action of conversion or for money had and received will lie in such a case I have no doubt. See, as supporting this view, Garner v. Cutting, *6932 Iowa, 552; Church v. Bloom; 111 Iowa, 320; Wallin v. Murphy Co., 117 Iowa, 640; Holden v. Cox, 60 Iowa, 449; Blake v. Counselman & Co., 95 Iowa, 219, and many cases from other jurisdictions cited and referred to in the opinions cited.
Defendants obtained the property without right, and no demand was necessary. As plaintiff had an express lien upon both the property and the money and to the amount of its judgment was entitled to the money, he was not required to plead or prove insolvency of the original judgment debtor. Plaintiff was entitled to his security, and no one could deprive him of it, and then plead or insist that plaintiff should proceed' against his original judgment debtor. If plaintiff would have been entitled to relief upon motion in a summary' manner, he certainly is entitled to recover the same amount should he adopt a slower remedy by proceeding at law to recover the money to which defendants were not entitled as against the plaintiff. Even if plaintiff has pleaded more than was necessary and has called his action by the wrong name, he is nevertheless entitled to judgment, for he pleaded enough to entitle him to judgment for the amount of his judgment with interest. Code, section 3639. Defendants may, of course, have the satisfaction of their judgment canceled and annulled, and may then proceed against the common judgment debtor. Surely defendants should not by their own wrong be allowed to place themselves in the position of prior lien-holders and force plaintiff, a superior lienholder, to' proceed against the judgment debtor. If that judgment debtor is insolvent, defendant should be the loser and not the plaintiff.
I would reverse as to defendants Graham & Schenck.