1. REFLIVEN : demurrer confessed: order of court. It is claimed when the demurrer was confessed, and no amendment to the petition filed, the defend-entitled to judgment as upon a dismissal of the action for a return of the property Qr f01. ^16 vaque 0f the defendant’s interest. Code, § 3239; Marshall v. Bunker, 40 Iowa, 121. No such judgment was rendered, but the plaintiffs were required to pay to the defendant the value of such interest and all costs. The money so paid to be held by the defendant in place of the property in controversy. The question is whether the *216defendant has been prejudiced by this ruling. It appears to us he obtained all he was entitled to. If a return had been awarded, all the defendant could have done was to sell .the property, or a sufficient amount thereof, to satisfy the execution and costs. It is true, the ownex’ship of the px*operty has not been determined, but the value of the defendant’s interest in his hands stands in the place of the propex’ty, and who is exxtitled thereto remains to be detexmined. The defendant has no interest in or right to the property except in his official capacity under and by virtue of the levy. Had a return been awarded or judgment for the value of the defendant’s interest been rendered, the question as to the ownership of the property would not in fact have been determined. The effect, however’, in such case, would have been to estop the plaixxtiffs from thereafter contesting such question. This result would be caused by the 'failxxx’e of the plaintiffs to give notice of their ownership, and not because they were not ixx truth and and ixx fact the owners of the property iix controvex*sy. The failure to give the notice required by statute, without doubt, was an ovex-sight, and the defendant should not be pexunitted to reap a sxxbstantial advantage therefrom, unless he has been, in fact, prejudiced thereby.

If, upon confessing the demurrer, the defendant had given the requisite notice and filed an amended petition, so alleging, and paid all costs incurred in the actioxx up to that time, we see no reason why the action might xxot have proceeded axxd the right of the parties to the property been determined. If the course suggested had been adopted the case in pxúnciple, as to the x’iglxt under the cix-cumstances to axnend, would have been analagous to Seevers v. Hamilton, 11 Iowa, 66. What was done 'is lull as favorable to the defendant as if the course indicated had been adopted.

But it is suggested the defendant may have had other rights to the pi’operty or other executions that had been levied thereon, and that there was no issue, nor could any have been formed under which such questions could have been de*217termined. The record fails to disclose the defendant claimed any other interest in or right to the property than that founded on the levy of the Lawton & Post execution. Under the circumstances, we think the defendant should have in some manner indicated to the court • he claimed the property because of some other right thereto, if any such he had. When the result is a reversal, we cannot presume a state of facts not shown by the record. Besides this, there is matter appearing in the record which affirmatively shows the defendant had no other interest than that under the levy of the Lawton & Post execution, which, in the absence of any showing to the contrary, is entitled to consideration, and that is the receipt signed by the defendant Klotzbach. The right of the defendant to the property and the-extent of his interest therein is stated in the receipt. Klotzbach, as against the defendant, could have retained the property upon paying the amount of the Lawton & Post execution and costs.

Affirmed.

2.—: —: —. dissenting. — I cannot concur in the foregoing opinion. Upon the dismissal of a cause of action in replevin, the defendant becomes entitled to the possession of the property, or to a judgment for the value of his interest therein. Marshall v. Bunker, 40 Iowa, 121; Chadwick v. Miller, 6 Iowa, 34. The court in this case did not order a return of the property, nor enter a judgment in favor of the defendant for its value, nor for the value of his interest therein, but simply made an order that the plaintiffs pay to the defendant the amount of an execution for the satisfaction of which the court assumed that the defendant held the property. The court does not determine, nor provide, any means of determining, judicially, the amount which plaintiffs shall pay.

It is said that the defendant is in no way prejudiced, because the plaintiffs are required to Satisfy the execution under which defendant holds the property. But how is it known, and how has it been determined, that the plaintiffs have been *218required to satisfy the lien under which defendant holds the property? It is true the plaintiffs allege in their petition that the defendant holds the property under an execution in favor of Lawton & Post against A. Reisner, and the court has ordered the plaintiffs to pay to the defendant a sum sufficient to satisfy this execution. But it cannot be claimed that the allegation in the jietition is conclusive against the defendant. The defendant had a right to set up his own claim to the property. It may be that he holds the property under other executions, as well as the execution in favor of Lawton & Post, and that a satisfaction of the execution of Lawton & Post would not at all satisfy the defendant’s claim upon the property. It may be that the defendant does not hold the property under an execution in favor of Lawton & Post, but in favor of other parties. These questions the defendant was entitled to have tried in some manner, upon a sufficient petition, or at least he could not rightfully be deprived of the property until these questions were tried. His demurrer to the petition simply admits the allegations of the petition for the purposes of the demurrer. The demurrer was confessed, and the plaintiffs declined to amend. There was, then, no pleading upon which the defendant could join issue, and no mode in which his interest in the property coidd be determined. Yet, without any pleadings, and upon a mere ex parte showing of the plaintiff, the court has undertaken to determine under what right and by what authority the defendant held the property, and really to adjudicate the extent of the defendant’s interest, substantially as he would have been authorized to have done, if the petition had been held sufficient, and the defendant had set up in his answer under what claim he held the property. In making the order appealed from, I think the court erred. Upon the failure of the plaintiffs to amend their petition, which operated practically as a dismissal of their cause of action, the court should, in my opinion, have rendered judgment in favor of defendants for a return of the property, and, in default thereof, for its value.