Ex parte Rice

102 Ala. 671

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

BRICKELL, O. J.

It is conceded that the mode .prescribed by the statute, (Pamph. Acts, 1880-81, p. 268), in which a cause may be transferred from the city court of Montgomery to the circuit court of the county, was not pursued. It was not contemplated cr intended by the parties to observe the mode of procedure directed in the statute. A transfer by consent, expressed in open court, and entered on the minutes of the city court, was the mode they preferred and adopted, and of its efficacy, we see no reason for doubt. The city and circuit courts are of concurrent, co-equal jurisdiction of the subject matter of the suit, and sit within the same territorial jurisdiction. It is competent for parties, at any and all times, with the consent of the court exercising jurisdiction, whether the mode prescribed by statute is observed or not, to change the venue in civii causes, by consent expressed in open court, and entered of record. — Pierson v. Finney, 37 Ill. 29; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Burnley v. Cook, 65 Am. Dec. 79; Gager v. Gordon, 29 Ala. 341.

If there be error or irregularity in the mode in which the change is effected, the maxim, “consensus tollit errorem,” applies. The parties induced the city court to part with its jurisdiction, transferring the venue for the trial to another court of plenary jurisdiction. By their own conduct they affirmed the existence of all facts essential to the jurisdiction of the latter court, and upon the affirmation, the court could not but act judicially.— Railway Company v. Ramsey, 22 Wall. 322. Consent can not confer jurisdiction it is true ; but it is jurisdiction of the subject matter, which is derived from the law, which parties may not by consent confer. When jurisdiction of the subject matter is conferred by law, jurisdiction of the person may be acquired by the acts or consent of the parties. There is a wide difference between conferring jurisdiction by consent, and consenting to something within the power of the court, deemed promotive of the convenience of the parties. The parties appeared in the city court, and by their consent, an order was entered transferring the cause to the circuit court. Thereafter, without objection, for two successive terms the parties appeared in the circuit court, and at each term, there was a continuance of the cause by the relator. If there had been error or irregularity in the transfer, and. of it the relator intended to take advantage, objection should have been made at the earliest opportunity. It is a fixed rule of all courts, that a party having cause to set aside any process or proceeding of this character, j,nd he neglects to assert it within a reasonable time, having knowledge of the facts, the objection is waived. — Broom’s Legal Maxims, 135.

The recital of the record of the city court, that the cause was by consent transferred to the circuit court; and the recitals of the record of the circuit court of the appearance of the parties, and of the continuance of the" cause, are incapable of contradiction by parol evidence. They import absolute verity, and all parties to them are estopped from denying their truth — See Deslonde v. Darrington, 29 Ala. 92; Whart. Ev., §§ 980, 982.

Mandamus denied.