The petition alleges the death of decedent, appointment and qualification of plaintiff as administrator, corporate character of defendant bank and official position of the individual defendant as cashier of the bank; that the decedent at the time of his death held a described policy of life insurance upon which there was due at the time of decedent's death $2652.53; that decedent had assigned the policy to defendants, either or both of them, as collateral security for an indebtedness to defendant bank; that at the time of decedent's death the defendants were fully paid and neither had any further claim on the policy or right to receive the proceeds; that defendants knowingly made false representations to the insurance company for the purpose of inducing the company to pay to defendants the amount owing on the policy and of defrauding decedent's estate; that the insurance company relied thereon and paid over to defendants the amount due on the policy "all to the great damage of this plaintiff and to the estate of Paul C. Markworth, deceased, and all persons interested therein"; that the moneys paid over by said insurance company to the defendants were wrongfully had and received by the defendants, and were moneys belonging to the estate of Paul C. Markworth and this plaintiff as administrator thereof.
"That when said defendants received said money, the defendants received the same well knowing that the said Paul C. Markworth nor his estate were indebted to the defendants in any amount whatsoever, and received such moneys with full knowledge that the same should be paid to the estate of Paul C. Markworth or the persons interested therein.
"That said moneys were and are the property of the estate of Paul C. Markworth and this plaintiff as administrator thereof, and that they were wrongfully obtained by the defendant and said defendants wrongfully withhold the payment thereof from the plaintiff as administrator, to the damage of the estate of Paul C. Markworth, in the sum of $2292.53 and this plaintiff as administrator thereof.
"That demand has been made therefor, but that said defendants have refused to pay over said moneys to this plaintiff.
"That said moneys are the property of this plaintiff as *Page 967 administrator aforesaid, and the defendants hold the same intrust for the plaintiff as administrator of said estate, and forthe use and benefit of the estate of Paul C. Markworth, deceased,and all persons interested therein."
The prayer is for "judgment against the defendants and each of them in the sum of $2292.53 with interest * * * and costs * * *." Equitable relief is not asked.
Defendants moved to transfer to equity "for the reason that the cause of action stated in the amended and substituted petition is of equitable cognizance and states the creation and existence of a constructive trust, whereby the defendants are alleged to hold certain money in trust for the plaintiff, and seeks to enforce such trust, and that such issues can only be tried and determined in a court of equity."
The motion was sustained. Thereafter the plaintiff amended by striking out the portion of the petition above italicized, moved to transfer from the equity to the law side of the calendar on the ground, among others, "that the action is based entirely upon fraud and deceit and moneys had and received and no equitable principles are involved therein" and to require trial in equity would be a denial of plaintiff's inherent right to a jury trial. Defendants moved to strike plaintiff's motion to transfer. Pending these motions plaintiff filed another amendment by which he disclaims any equitable relief "and states that the moneys received by said defendants as alleged * * * has * * * been appropriated to the use of said defendants either or both of them, and that the same can not be traced by the plaintiff and that by reason thereof the plaintiff * * * as administrator * * * has been damaged * * * in the sum of $2292.53." The court sustained the defendants' motion to strike plaintiff's motion.
Section 10941, Code, 1927, provides:
"The plaintiff may prosecute his action by equitable proceedings in all cases where courts of equity, before the adoption of this code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive."
Section 10942 provides for action on note and for foreclosure of mortgage by equitable proceedings.
Section 10943. "In all other cases, unless otherwise provided, *Page 968 the plaintiff must prosecute his action by ordinary proceedings."
Section 10944. "An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket."
Section 10945 provides: "Such error may be corrected by the plaintiff without motion at any time before the defendant has answered, or afterwards on motion in court."
By Section 10946, "The defendant may have the correction made by motion at or before the filing of his answer, where it appears by the provisions of this code wrong proceedings have been adopted."
It will be seen that the plaintiff may prosecute his action by equitable proceedings in all cases where before the adoption of the code courts of equity had concurrent jurisdiction and "must so proceed in all cases where such jurisdiction was exclusive."
Defendants have the right to compel plaintiff to prosecute by equitable proceedings only where jurisdiction in equity prior to the adoption of the code was exclusive. Plaintiff, therefore, had the right to maintain his action at law unless the case presented by his petition was one of which equity had exclusive jurisdiction.
The petition sets out, in substance, a pledge by decedent of the policy of insurance to defendants, the payment of the debt for which the pledge was made, the consequent discharge of the pledge, the collection and receipt by defendants of the proceeds of the policy and demand for judgment for the amount of such proceeds. The allegations of the petition show a conversion of the pledged property. 49 C.J. 972. Plaintiff might waive the tort and sue in contract. 1 C.J. 1036. Plaintiff's demand was for the amount alleged to have been collected and not the value of the policy. Thereby plaintiff elected to affirm the payment of the policy to the defendants and the collection by them. Sackett v. Bank, 209 Iowa 487. He was entitled to recover the proceeds in an action for money had and received. 49 C.J. 973. We need not discuss the question whether or not equity had concurrent jurisdiction by suit for accounting. Jurisdiction at law to recover either for conversion or for money had and received or *Page 969 on the contract of pledge is well established. 49 C.J. 950, 957, 973; 21 C.J. 55, et seq.; 41 C.J. 28, et seq. If the courts of common law had concurrent jurisdiction the plaintiff had the election to proceed at law. Defendants had no right to compel him to proceed in equity. McAnulty v. Peisen, 208 Iowa 625. Though plaintiff inserted in his petition allegations such as that the moneys paid by the company were moneys belonging to the estate and wrongfully obtained and were held in trust, he had brought his action at law as he had the right to do and such allegations were merely surplusage. The mere fact that he made these unnecessary allegations did not operate to set up a cause of action jurisdiction of which in courts of equity prior to the adoption of the code was exclusive. The case was at most one of concurrent jurisdiction. The court erred in transferring the cause to equity. McAnulty v. Peisen, 208 Iowa 625; Lynch v. Schemmel, 176 Iowa 499; Darst v. Fort Dodge, D.M. S.R. Co.,189 Iowa 632, 633.
Plaintiff filed his first amendment, above referred to, and motion to transfer the day before defendants filed their answer. But whether before or after it was plaintiff's right to have the correction made. By the answer defendants admitted the assignment of the policy, the receipt of the proceeds, allege that at the time of the assignment decedent was largely indebted to defendant bank and continued indebted to it until his death "when he owed not only the amounts due at the time of the assignment but for other subsequent advances. Deny that the indebtedness was fully paid." The prayer is that the title of the bank to the fund be confirmed and for decree that the assignment was in full force at the time of the death of the insured as a lien upon the policy and its proceeds superior to the rights of the plaintiff and for costs. No accounting or general equitable relief is asked for. The answer does not set up any equitable issues which should have been retained on the equity side of the docket. Lynch v. Schemmel, 176 Iowa 499; Darst v. Fort Dodge, D.M. S.R. Co.,189 Iowa 632, 633.
By sustaining defendants' motion to strike, though the motion was not proper practice (German Savings Bank v. Cady, 114 Iowa 228), the court in effect overruled plaintiff's motion to *Page 970 transfer, which, I think, was an error, and therefore should be reversed.
STEVENS, J., concurs in this dissent.