61 Iowa 45 | Iowa | 1883
In a supplemental argument filed by counsel for appellants we are asked to dispose of the case upon the ground that the court below had no jurisdiction to entertain and try the action. The question is for the first time raised in this court, and in a supplemental argument, and it is claimed that a want of jurisdiction may be raised at any time. It is correct that, where a court has no jurisdiction of the subject-matter of the action, or of the parties thereto, the objection may be raised for the first time in this court. Cerro Gordo County v. Wright County, 59 Iowa, 485. Rut in this case the circuit court had full jurisdiction of the parties. It also had jurisdiction of the subject of the action — which was a controversy between the parties as to whether the sale of the goods was or was not fraudulent. The form of the action to test this question did not pertain to the jurisdiction of the court. An error as to the kind of proceedings adopted will not cause the abatement or dismissal of the action. Code, § 2514. When the plaintiffs amended their petition in the attachment proceedings, they averred therein that their attachment liens were then in full force and virtue, as alleged in the original petition. The defendants did not answer the amendment, .and the record does not show that any objection whatever was made to the form of the action by demurrer, motion or otherwise. We think the objection now made, comes too late. '
It will be seen from the above statement that the property purchased was worth $1,250 in'excess of the price agreed to be paid. It is charged that the sale was fraudulent,' because the parties thereto agreed that the surplus should be held by John Hurto and Lambert in secret trust for S. IT. Hurto, in fraud of other creditors. ¥e do not think this claim is supported by the evidence. Taking all of the evidence together, the impression made upon the mind therefrom is that John Hurto and Lambert were honestly seeking to protect themselves from loss by the insolvency of S. H. Hurto. They took the goods without knowing their exact value, and without knowing exactly what they would be liable for. They did not buy upon speculation, but merely to save themselves from loss. They repeatedly stated after the transaction that, if there was any surplus after saving themselves harmless, it would go to the other creditors, and we think that under the evidence this should be held to be the nature of the transaction. The defendants should be held liable toother creditors in the sum of $1,250, and’no more.
As the amount of the judgments in this case are less than that amount, the finding we make will not lead to a reversal
Affirmed.