Schloss v. O'Hara

1 Ky. Op. 395, 1866 Ky. LEXIS 349

• Court: Court of Appeals of Kentucky
• Decided: October 6, 1866
• Status: Published

Opinion

Opinion of the Court by

Judge Robertson :

However informal or even technically insufficient the pleadings may have been the appellant Ackerland and the appellees conventionally made and tried the issue on the question whether the transfer of the goods by Schloss & Gritz was constructively fraudulent and the proceeds legally distributed under the Statute of 1856. This was a waiver by Ackerland of all advantage which he might have taken of the irregularity of the pleadings or the form of the issue. And, although Schloss and Gritz may not have been formal parties to that agreement, yet as they had transferred the goods to Ackerland, by a conveyance binding on themselves, and, therefore, had no interest in the main question litigated, they, on their cross-appeal, cannot complain of that which is not injurious to them. Nor are they entitled to a reversal on the ground that no bond was executed to them as nonresidents, because the Code does not require any such bond in a proceeding under the Statute of 1856, and because, also, having irrevocably alienated all their interest, they had no right to restitution of the goods or indemnity for the decretal sale of them even on a reversal of that decree.

The record sustains the judgment subjecting the goods to the claims of all the creditors of Schloss and Gritz, and the amount adjudged against them seems to be unobjectionable. Wherefore, the judgment is affirmed.