45 Iowa 104 | Iowa | 1876
The petition states that no division has been made, and ’ that defendant refuses to. arbitrate or make any division of the assets. This is denied in the answer, and the referee failed to make any finding'in reference thereto.
The respective boards of directors are yet in existence, and, therefore, this case is distinguishable from The Independent School District of Georgia v. The Independent School District of Victory, 41 Iowa, 321. While this is true, it seems to have been the opinion of Beck, J., if not of the court, in that case, that a special tribunal having been created by statute, clothed with power'to make a division of assets between the old and new organizations, the jurisdiction of such tribunal was exclusive during its existence. This seems to us to be the reasonable and proper view. It is eminently just that the division should be made by the local tribunal appointed by law. It must be an equitable division in view of all the circumstances shown, and what is equitable is for such tribunal to determine. It would seem that the General Assembly had, without doubt, intended that an appeal to the courts
This jurisdictional question was not raised in the court below, nor bas it been in this court; but consent -never gives jurisdiction over tbe subject matter, and it may and should be raised by tbe court at any state of the proceedings.
Especially is this true in this character of action, for we would not even by implication sanction a resort to tbe courts in cases of this hind, unless tbe tribunal appointed by law bad ceased to exist and there was no other remedy.
Tbe judgment below will be set aside and tbe cause remanded with directions to strike tbe action from tbe docket for want of jurisdiction, unless tbe plaintiff can, by proper averments, so amend the petition as to constitute and make tbe same a petition seeking relief such as may be given in an action of mandamus.
Tbe appellee must pay tbe costs.
Appeal dismissed.