Gager v. Doe, ex dem. Gordon

STONE, J. 1. It may be conceded that, by the change of venue, the circuit court of Mobile county parted with jurisdiction over this case. Whether the circuit court of Washington county had power, by the consent of the parties, to re-transfer the case to Mobile, we need not now decide. The lands sued for lie in Mobile county, and the circuit court of that county has jurisdiction over the subject-matter. It was competent for the parties, by consent, to waive process, come into court, and thus give jurisdiction over their persons. Thompson v. Lea, 28 Ala. 453. 2. In the case of Byrd v. McDaniel, 26 Ala. 582, the chancellor had dismissed the bill, and the case was out of court— finally disposed of. At a subsequent term, when he had no authority whatever over the case, he made an order reinstating it upon the docket, against the objection of defendant. The identical papers which composed the file of the dismissed case, were the papers of the case thus reinstated. This court said, that the defendant might have treated the entire proceeding as coram nonjudice; but, because he “engaged in'the defense, by crossing interrogatories, entering into consent, objecting to proof as illegal, &c.,” it was considered that he had waived the objection, and the case was again in court. That case was much stronger for the appellee, than this. Here, the - record shows that the order for change of venue was, by the consent of the parties, rescinded by the circuit court of Mobile county, and the case reinstated on the docket, at the fall term of that court, 1851. The case wa; then reg [345] ularly continued on the docket, until spring term, 1855, when for the first time motion was made to strike the case from the docket. The court rightfully overruled the motion. — Hair v. Moody, 9 Ala. 399; Lampley v. Beavers, 25 Ala. 534; Rose v. Thompson, 17 Ala. 628; Vaughan v. Robinson, 22 Ala. 519. 3. The question of the admission of the deed from Graves and wife to Damner & Williams, is not so presented that we can review it' in this court. The language of the bill of exceptions is, “Plaintiff offered in evidence, to sustain his title, a deed from John and' Celeste Graves to Damner & Williams, to the introduction of which defendant objected; and the court overruled the objection, and permitted it to be read to the jury, against the objection of defendant.” This we understand to be an objection to the offer of the plaintiff, and not to the action of the court on that offer. To raise the question in this court, the defendant should have gone further, and excepted or objected to the action which the court took on the plaintiff’s offer or motion. — Sackett v. McCord, 23 Ala. 851; Chamberlain v. Masterson, at the present term. 4. It is not necessary that we should decide whether the jury found the suggestion of three years adverse possession in favor of defendant. They do not respond directly to that inquiry, but proceed to assess the value of the improvements, and the rents. If the verdict be held an implied affirmation of the truth of the suggestion, then it was the duty of the jury to assess the value of the lands. This error, however, was rendered harmless, by the payment of -the assessed value of the improvements made by the plaintiff before judgment was rendered on the verdict. This rendered it impossible that the contingency ever can happen, on which the defendant will have the right to pay the assessed value of the land, and, in that way, acquire the title to it. If this was error, it was without injury. — Gilmer v. City Council, 26 Ala. 665. Thejudgment of the circuit courtis affirmed.