Montgomery v. Town of Soott , 32 Wis. 249 ( 1873 )

Cole, J.

It may be conceded for the purposes of this case, that the application for a change of the place of trial on account of the prejudice of the judge was not in conformity with the statute upon that subject, and therefore was insufficient had seasonable objection been taken to it on that ground; still, upon the facts, we are clearly of opinion that the defect cannot now be insisted upon, but that the doctrine of waiver applies. The place of trial was changed upon this application to the circuit court of Dodge county, where the cause was twice tried upon the merits. ■ It .is true that on the second tria,l after the notice for a nonsuit was overruled, it appears the defendant moved to dismiss the action for want of jurisdiction, on account of the insufficiency of the application. This was the first time the objection seems to have been taken, and even then the question was ■ not decided by the court, but the defendant introduced witnesses in its behalf. And then, on the motion for a new trial upon the minutes.of the judge, the objection is . again taken, that the court erred in not dismissing the cause for want of jurisdiction. It seems to us the objection came too late, and should have been disregarded. Eor the cause was sent to Dodge county, where it was noticed without objection by both parties for trial. It was tried on its merits, and the jury at the' first trial failed to. agree upon a verdict. It was again noticed for trial by both parties at the next term of court, and, as already remarked, not until the close of the plaintiff’s case at the second trial was the objection raised that the application for the change was not sufficient. The defect, if any existed, was certainly cured by these various steps taken by the defendant, and cannot now be insisted upon.

The circuit court of Dodge county had jurisdiction of the subject matter of the action, and the parties might have gone into that court and tried the cause without any process being issued and served. Consent would give jurisdiction of the parties. Where there is jurisdiction of the subject matter of the action, parties may give jurisdiction of the person by a voluntary appearance. And when there is a defect in the service of process, if the defendant enters an appearance and goes to trial on the merits, the irregularity is waived. The same rule ought to apply to the alleged defect in the application for change of the place of trial. The defendant went into the eircut court of Dodge county ; submitted to the jurisdiction of that court; tried the cause upon the merits once without objection ; and not until the close of the plaintiff’s case on the second trial was there any question raised that the application was insufficient. It was then too late to take advantage of any defect in the application, since the defendant had clearly waived it, if any originally existed.

There were other grounds relied on in the circuit court, for setting aside the verdict, but as the court dismissed the action for want of jurisdiction, those questions are not before us. We only intend to decide the question before us, namely, whether the defendant, after taking the steps it has in this cause, can raise any objection to the application for a change of venue from Sheboygan county. We hold that the defendant has waived that objection. If the circuit court should be of the opinion that a new trial should be granted for any of the other reasons set forth in the motion, it will be at liberty to grant it, as our decision is intended to be confined to the only point raised by the appeal.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.