Bennett v. Wilkins , 45 Tenn. 240 ( 1867 )

Hawkins, J.,

delivered tbe opinion of tbe Court.

This bill was filed in tbe Chancery Court at Columbia. Tbe defendant, Wilkins, filed an answer, in which he relies upon a demurrer upon the ground. of a want of jurisdiction of tbe Court, of tbe subject matter.

Tbe Chancellor allowed tbe demurrer and dismissed tbe bill, and from this decree tbe complainant has appealed to this Court.

A defendant cannot, under the provisions of the Code, avail himself of the benefit of an objection to the jurisdiction of the Court, except by a plea or • demurrer, or by motion. This objection is waived by the filing of an answer; and a party cannot insist upon, or avail himself of the benefit of an objection, by relying thereon in his answer, which the law declares he waives by filing the answer.

The provisions of sec. 4819, of the Code, which declares the defendant “may have all the benefit of a demurrer, by relying thereon in his answer,” applies only to other causes of demurrer,, and not for want of jurisdiction.

The decree of the Chancellor' is, therefore, erroneous, and must be reversed. The cause, will be remanded to be proceeded in.