Hunstiger v. Kilian

Per Curiam.

On motion for reargument respondent contends that in the trial court both parties assented'to the method of trial by which the jury were resolved into a licensing body and directed to pass upon the propriety of such license regardless of the action of the town board. We do not wish to detract from the salutary rule that parties who consent to try a lawsuit upon a certain theory are bound by their election; but that rule cannot be applied here. The question is one involving jurisdiction of the subject matter of the action. Such jurisdiction cannot be conferred or enlarged by consent of parties, and the court may of ias own motion raise the objection at any stage of the case. 11 Cyc. 673, 701; Crawford Co. v. Hathaway, 61 Neb. 317, 85 N. W. 303; Matter of Will of Walker, 136 N. Y. 20, 32 N. E. 633; Attorney General v. Moliter, 26 Mich. 444.

Application denied.