Decided 11 June, 1900.
On Petition for Rehearing.
[61 Pao. 345.]
Mr. Justice Beandelivered the opinion of the court.
The record shows that, after the plaintiffs rested, defendants’ counsel moved for a nonsuit, pending which counsel for plaintiffs asked leave to file a supplemental complaint, “ to conform to 'the facts proven at this trial, setting up, in addition to the one filed in the other complaint, a judgment;” to which counsel for defendants objected, “for the reason this ought to have been filed before ; plaintiffs knew' about the judgment, and should have filed this supplementary complaint before; ” to which counsel for plaintiffs replied, “ I simply desire to *573add to the complaint by way of supplemental matter the fact of the judgment; I do not want anything except to allege the ripening of the claim into a judgment.” The objection to the filing of the supplemental complaint was thereupon overruled, and the court stated: “It will be deemed as at issue now; that is, counsel may proceed and try the case on the theory that it is at issue ; that is, I will receive in evidence what would be called for in case the allegation was permitted, just as much as if it were filed.” Counsel for plaintiffs then offered, and the court admitted in evidence, certain parts of the record in the action of Fleischner, Mayer & Company against Redmond, after which counsel for defendants moved for a nonsuit, urging as grounds therefor : “First, that it does not appear from the testimony that there was any attachment ever levied so as to give the court jurisdiction, and that the court had and has no jurisdiction in this cause ; second, there is no evidence before the court that any or either of the said chattel mortgages or the said assignment is fraudulent or void or voidable.” This motion was denied, and the defendants thereupon proceeded to introduce their evidence. It thus appears that the only objection made to the filing of the supplemental complaint was that it came too late, and ought to have been filed at some previous stage of the trial. The defendants did not object because it was insufficient, or express any desire to, or move against it as a pleading. No objection was made to its being filed because it did not state facts sufficient to constitute a cause of suit, or that by it the plaintiffs sought to maintain their suit upon facts occurring since the filing of the original complaint. The defendants had ample opportunity to raise such questions, but they simply objected to the court granting the plaintiffs leave to file the supplemental complaint on the sole ground that it ought to have been filed before. We think, therefore, we *574were justified in proceeding on the theory that the objection now sought to be made to the complaint was waived because not made at the hearing. It is true the supplemental complaint in form was not filed at the time, but the trial proceeded without objection, so far as the record discloses, with the understanding that it should be, as stated by the court, deemed on file.
Counsel also rediscusses in the petition for rehearing the facts in the case. But, in view of the original opinion, it is sufficient to say that a re-examination of the record has confirmed us in the views already expressed.
10. It appears, however, that, after the satisfaction of all claims ordered paid by the decree herein, there will remain in the hands of the receiver, or of the court below, a considerable amount of money — the proceeds of the sale of the property covered by defendants’ mortgages— which counsel for defendants move to be paid over to them. The claim of the plaintiffs seems to be that such money should be distributed among Redmond’s creditors, according to their respective rights, and that an opportunity ought to be given them to present their claims. But this is not a proceeding instituted for the benefit of his general creditors, but is a suit brought by plaintiffs to set aside and have declared void as to them the chattel mortgages referred to in the pleadings. These mortgages are valid between the parties, and the only creditors challenging their validity in this suit are the plaintiffs, and the intervening creditors, Kuh, Nathan & Fisher Company and Sweet, Orr & Company. As to them the instruments are fraudulent and void, but, so far as this proceeding is concerned, they are valid for all other purposes. We are of the opinion, therefore, that the balance on hand ought to be paid over to the defendants. The decree entered here will be modified accordingly, and the petition for a rehearing overruled. Rehearing Denied.