
    The Iowa Northern Central Railway Co. v. Ritter et al.
    
    1. Jurisdiction: consent: waiver op objections to. An appeal from a judgment of a justice of tlie peace was taken to the district court before the act creating the circuit court went into operation. The appellee afterward filed the transcript in the circuit court and obtained judgment thereon against the defendant and his surety in the appeal bond. At the following term, defendant made application to set the judgment aside for reasons assigned, but made no objection to the jurisdiction. Held, that by appearing and failing to object to the jurisdiction of the circuit court, he was thereby estopped from urging it for the first time on appeal to the supreme court.
    2.- The jurisdiction, in this case, is not of such character that it cannot be conferred by consent.
    
      Appeal from Johnson Cvremt Court.
    
    Friday, June 13.
    On the 12th day of July, 1871, a transcript was filed in the office of the clerk of the Johnson county circuit court, from the docket of a justice of the peace, in which judgment was rendered on tbe 22d day of July, 1868, in favor of plaintiff against the defendant, Benjamin Bitter, for $90. On tbe back of tbe transcript is tbe following indorsement: “ Filed October 18, 1868. F. H. Lee, clerk.” On tbe 12th of July, 1871, tbe plaintiff filed tbe transcript in tbe circuit court of Johnson county, and bad tbe following indorsement made thereon: “ Filed July 12th, 1871. J. 0. Sinzer, clerk.”
    On tbe said 12th of July, 1871, judgment was entered in favor of tbe plaintiff against Bitter and his surety on tbe appeal bond.
    On tbe 20th day of November, 1871, tbe defendant filed in tbe office of tbe clerk of said court an application to set aside tbe judgment.
    In support of this application an affidavit was filed, stating in substance, that it was agreed between defendant and tbe attorney of plaintiff, that if defendant would not further prosecute bis appeal, tbe plaintiff would take tbe full amount of tbe judgment in ties for tbe construction of tbe railroad, and that defendant has at all times been ready to deliver tbe ties along tbe line of said railroad most contiguous to tbe timber of plaintiff, and that plaintiff fraudulently, and in violation of said agreement, filed a transcript of said judgment in court, and bad tbe same affirmed.
    In opposition to this application the attorney of plaintiff filed bis affidavit, stating in substance, that after defendant bad perfected his appeal, be complained to affiant that be bad not time to look after tbe claim, and would like to do something to get it fixed up; that be would be willing to give tbe company ties in payment of tbe claim; that affiant said be bad no authority to make such arrangement, but that defendant would, of course, have tbe claim to pay, and that if he would agree to a judgment affirming the judgment below, affiant would lay tbe matter before tbe board of directors, and if they would consent, would get them to take ties in payment of tbe judgment, and that tbe defendant agreed to this proposition, which was reduced to writing and signed by defendant and affiant, which agreement was filed in tbe clerk’s office for the purpose of having judgment entered thereon, and that affiant has not seen the same since. That the case was appealed by defendant and was not sooner put into judgment, because by oversight, delays of court, convenience of counsel, etc., it was permitted to remain without disposition, but that the delay was not by reason of any such agreement as is set out by defendant.
    The court overruled the motion for a new trial.
    Defendant excepted, and now appeals.
    
      J. D. Templm, <& Son for the appellants.
    Fomall, Boal <& Jaohson for the appellee.
   Day, J.—

I. Upon the fact stated in the motion that the judgment in the circuit court was obtained fraudulently and in violation of the agreement, there is conflict of evidence.

The court found that no such agreement as defendant sets up was entered into, and this finding is abundantly sustained by the evidence submitted. In this ruling there is no error.

II. Defendant urges that the circuit court had no jurisdiction of the appeal. A transcript of the justice was filed in the office of the clerk of the district court on the 18th day of October, 1868, prior to the taking effect of the act creating the circuit court, which went into operation January 1, 1869. It cannot be contended that the circuit court had not general jurisdiction over the subject of this controversy. It has exclusive jurisdiction of, all appeals from justices of the peace. Laws 1868, ch. 86, § 5.

This appeal having been taken before the act creating the circuit court went into operation was properly pending in the district court, yet, there can be no question biff that the parties might have appeared in the district court, and by consent have transferred the cause to the circuit court. See section 7 of the act aforesaid.

And if the cause had been transferred at the request of one party, and the other had voluntarily appeared and without any objection had submitted the cause to trial, he would thereby have conferred jurisdiction and estopped himself from afterward questioning it, for the want of jurisdiction in this case is not of that character that consent cannot confer it. Now, in this case the question of jurisdiction is presented for the first time in this court.

The defendant made a motion for a new trial, on the ground of fraud and violation of an agreement upon the part of defendant, in procuring the judgment. It is not hinted that the court had no jurisdiction to entertain the original action, nor to determine the motion upon the grounds stated. By thus failing to present the question of jurisdiction, and calling upon the court to entertain a motion which it could do only upon the ground that its jurisdiction was conceded, the defendant has conferred jurisdiction and estopped himself from questioning it in this court.

Affirmed.  