O'Hagen v. O'Hagen , 14 Iowa 264 ( 1862 )

Baldwin, C. J.

Bill for a divorce. At the June Term, 1861, of the Franklin District Court, after the pleadings were filed, an agreement was entered of record which reads as follows, viz.: “ By agreement of counsel, this cause is to be heard at Chambers, and is set for hearing at the town of Iowa Falls, in Hardin County, on Friday, the 23d day of August, A. D, 1861, and decree to be entered as of this term.” The cause was heard at the time and place designated, both parties appearing; proof was taken, the cause was argued, and a decree in favor of complainant was rendered, and entered of record in pursuance of the terms of the stipulation of the parties.

■ The main point of controversy is in reference to the action of the .Court in hearing and determining the cause at Iowa Falls, a place outside of the county in which the cause was pending. It is claimed that the Court had no jurisdiction to hear and try the cause as it did, and that even the consent of the parties could not confer this power. There can be no question as to the authority of the Court to hear the cause and render the decree in vacation, the parties consenting thereto. See Code of 1851, §§ 1821 and 1822; Townsley v. Morehead, 9 Iowa, 565; Hattenback v. Hoskins, 12 Id., 109.

The statute requires the Court to be held at the place designated by law, unless by common consent some other place is fixed upon. See Revision of 1860, § 2687. The Court has the power under this statute to change its place of sitting by common consent. If such consent is given, the question of jurisdiction is waived. The Court, without doubt, when it made this order, had jurisdiction over the parties and the subject matter in controversy. The parties assented to the order to hear at Iowa Falls, and appeared at the hearing, without interposing any objection to the right of the Court, or the Judge to act in the premises. "We think the defendant upon principle, is estopped from taking advantage of an express agreement entered into and made a matter of record, or denying the power of the Judge to hear the cause after he had appeared and made no objection to its action. Again, we think upon authority, that the doctrine that “consent cannot give jurisdiction” is not applicable to this case. “It applies,” says Mason, Chief Justice, in the case of Davidson v. Wheeler, Morris, 238, “ to a case where the Court has no jurisdiction over the subject matter, as if a justice of the peace were to try a man for murder. The consent of the accused could never render the sentence legal.” So in Smiths v. Dubuque County, 1 Iowa, 492, it was held that where the Court had jurisdiction over the subject matter in controversy, any objection as to the regularity of the proceedings merely, not made before the Court trying the cause, should be regarded as waived. Defects and irregularities both as to time and manner may be waived so as to preclude after objections by the silence of the party, even in the absence of his open consent or written agreement. The Court in this instance had jurisdiction over the subject matter, and the hearing of the cause out of term time, or at a place not designated for holding said Court, was at most nothing more than an irregularity in its proceeding, which was waived by the agreement and consent of the parties. The decree was entered up in Franklin County, where in contemplation of law the Court was then in session.

It is insisted by the appellant that the Court erred in its allowance of alimony. While it is true that it does not appear affirmatively that the evidence embodied in the record is all that was introduced, and upon which the Court based its decree, yet it does appear both from the bill and answer that the Court decreed to the complainant all of the real estate owned by the respondent. The bill and answer present both parties in a very unfavorable light before the Court, and the evidence introduced in the record is not very well calculated to assist the Court in determining which is the, innocent or which the injured party. Granting, however, that there was other evidence offered which justified the divorce, we are inclined to think there was error in the decree for alimony in giving all the real estate to the complainant. The decree is, therefore, so modified as to give to the wife the forty acres of land upon which the improvements were located; that is, the S. E. i of the S. W. ¿ of section 22, township 90, range 22 west, and the improvements thereon.

In other respects the judgment is affirmed.