Summary
In McMinn v. Hamilton, 77 N.C. 300, it is held, "if the defendant pleads to the merits of the action, he will be taken to have waived the objection" to the venue.
Summary of this case from Board of Education v. Board of EducationOpinion
(June Term, 1877.)
Jurisdiction — Venue — Pleading.
If a court has jurisdiction of the subject-matter of an action and the venue is wrong, the objection must be taken in apt time. If the defendant pleads to the merits of the action, he will be deemed to have waived the objection.
APPEAL from an order dismissing the action, made at Spring Term, 1877, of TRANSYLVANIA, by Henry, J.
J. H. Merrimon for plaintiff.
A. W. Haywood for defendant.
From the case agreed and the record the following facts appear: The plaintiff brought an action against the defendant in his representative character for $70.35 before a justice of the peace in said county where both parties reside. The defendant obtained letters of administration and filed his official bond in Henderson County. The defendant (301) appeared before the justice and pleaded payment and statute of limitations. Evidence was heard and judgment was rendered for the plaintiff, from which the defendant appealed. In the Superior Court he filed a demurrer, not to the jurisdiction, but on other grounds, and made a motion at the same term to dismiss the action for want of jurisdiction. The plaintiff declined to remove the case, by consent, and his Honor dismissed the action, from which order the plaintiff appealed.
Where a court has no jurisdiction of the subject-matter, the objection can be taken at any time, and indeed as soon as this fact is discovered the court mero motu will take notice of it and dismiss the action. But if it has jurisdiction of the subject-matter and the venue is wrong, the objection must be taken in apt time; and if the defendant pleads to the merits of the action, he will be taken to have waived the objection. He cannot have two chances.
Applying this principle to the case before us, we think the defendant waived the objection by pleading before the justice, and that it was then too late to raise it.
PER CURIAM. Reversed.
Cited: Devereux v. Devereux, 81 N.C. 19; County Board v. State Board, 106 N.C. 83; Cherry v. Lilly, 113 N.C. 27; Shields v. Ins. Co., 119 N.C. 386; Lucas v. R. R., 121 N.C. 508; Riley v. Pelletier, 134 N.C. 318; Rutherford v. Ray, 147 N.C. 258, 263; McArthur v. Griffith, ib., 550; Brown v. Harding, 170 N.C. 261.
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