
    John E. Fitzpatrick vs. John Ray.
    Where a case is removed by certiorari from a justice’s court to the circuit court, and a declaration is filed in the latter court, and the defendant appears and pleads, a motion to dismiss the certiorari comes too late; a dismissal after the pleadings have been made up will be erroneous.
    In error, from the circuit court of Hinds county.
    On the 15th of March, 1841, John E. Fitzpatrick filed a petition in the circuit court of Hinds for writ of certiorari with supersedeas, to remove from the justice’s court of A. L. Dabney, Esq. at Raymond, Miss, a judgment obtained before him, against the petitioner, by John Ray, upon an open account, for articles furnished by Ray to Benjamin Williams, an agent for the petitioner to carry on the Mississippi Springs for him, but who had no authority to buy articles on a credit.
    The writs were granted, and the cause regularly removed to the circuit court. At the June term, 1841, thereof, Ray appeared and filed his declaration in assumpsit against Fitzpatrick, who pleaded non assumpsit.
    At the December term, 1842, of the court, being the thirty-third day of the term, on the 25th day of January, 1843, Ray moved to discharge the supersedeas and dismiss the petition for insufficiency, which motion was granted, and the defendant prosecuted this writ of error.
    The following errors were assigned by the plaintiff in error.
    1st. After the pleadings are once made up, it is too late to make a motion to discharge th¿supersedeas, and dismiss the petition on account of the insufficiency of the petition. '
    2d. A motion to dismiss a certiorari cannot be made after the first term.
    
      Davenport and Greaves, for plaintiff in error.
    1st. It is contended by the plaintiff in error, that it was error to discharge on motion the supersedeas, and dismiss the petition after the pleadings were fully made up, and the cause ready for trial. The petition praying for certiorari and supersedeas was granted on the 15th of March, 1841, and filed on the same day in the clerk’s office. Certiorari and supersedeas issued on the identical day, to the magistrate who tried the catase, returnable to the June term, 1841. On the 17th of July, 1841, the plaintiff below filed his declaration. The defendant, below, pleaded non assumpsit, and the plaintiff concluded with the similiter. At the June term, 1841, then, the pleadings were made up fully, and the case stood on the issue docket for trial. If the plaintiff below, considered the petition insufficient, it was his duty to have made the motion to dismiss before he filed his declaration, and before the pleadings were made up, and the parties at issue.
    The petition is a declaration of the cause of the defendant, below, and when the cause was sent up to the circuit court, by the magistrate, in obedience to process from the clerk of the circuit court, it was the duty of the plaintiff, below, before he filed his declaration, and before the pleadings were made up, if he deemed said petition insufficient, to have made his motion to dismiss at the first term. In making a motion to dismiss, the statements contained in the petition must be taken as true, and the motion is, therefore, in the nature of a demurrer to the petition. . If the declaration is filed, and the pleadings made up, it is a waiver of all objections to the sufficiency of the petition. It is, in truth, a denial of the allegations in the petition, and an acknowledgment that if they be true, the party appealing is entitled to a verdict. It is laid down by Chitty, Stephen, and all the works on pleadings, that when the defendant pleads to the person of the plaintiff he admits the jurisdiction of the court, and when the defendant pleads to the court, he admits that the plaintiff is able to sue him, and the defendant to be sued. And when the defendant pleads to the form of the writ he admits the form of the court; and after a plea in bar to the action, the defendant cannot plead in abatement, unless in matters arising after the commencement of the suit. Palmer 
      v. Evertson, 2 Cow. R. 417; 1 Chitty on Pleading, 474; Stephen, 45.
    The motion to discharge the supersedeas, and dismiss the petition, is, in the nature of a demurrer to the petition; and, if the declaration is filed and the pleadings made up, advantage cannot afterwards be taken of the insufficiency of the petition, for a party cannot demur and plead at the same time, or demur after he has pleaded.
    When the petition appears on the face of it, and without reference to extrinsic matter, to be defective in substance, the opposite party may make a motion to dismiss. 11 East, 65, {Demurrer.) A motion to dismiss is a declaration that the party will go no further, because the other in his petition has not shown sufficient matter against him. 5 Mod.132; Co. Lit. 71, {Demurrer.) It should, however, be remembered, that a demurrer admits the facts pleaded, so does a motion, and merely refers the question of their legal sufficiency to the decision of the court; so does a motion to dismiss. Weems v. Willard, 2 I-Iarr. & Gill. 143; 1 Chitty Plead. 699, 700 ; Stephen Plead. 43.
    2d. It is further contended by the plaintiff in error, that a motion to dismiss a certiorari cannot be made after the first term. Hodge v. Dillon, Cooke’s R. 279. At the first term, and before the pleadings are made up, a certiorari may be dismissed by the circuit court upon motion, where it has been improperly awarded, to a justice’s court. Leech v. Irving, 2 How. R. 887. The record shows in this case, that the motion to dismiss was made at the December term, 1842, and that the plaintiff, below, waived notice, by filing his declaration, 7th July, 1841.
    Even with regard to forthcoming bonds this court have decided repeatedly, that it is too late to quash a forthcoming bond for irregularities, after the return term. Merrett, et al. v. Vance, et al., 6 How. R. 498 ; Wanzer v. Barker, 4 lb. 369.
    
      Briggs, contra.
   Mr. Justice Clayton

delivered the opinion of the' cotlrt.

The plaintiff in error, by certiorari, removed this cause, after -a judgment in a justice’s court against him, into the circuit court, by petition. The defendant in error, who was the plaintiff in the magistrate’s court, appeared and filed his declaration, to which a plea was regularly put in. At a subsequent term the cause was dismissed upon the motion of the defendant in error; from which it is brought to this court.

, We cannot perceive any just ground upon which this was done. The statute directs that cases of this kind, “should be tried in the circuit court, de novo, upon their merits.” We will not say, that in such cases no motion to dismiss can be at any time sustained, because it is unnecessary to decide that question. But after the pleadings in the case have been made up, such motion comes too late. The certiorari is the process for bringing the case into the court. It is made to serve the double purpose of removing the cause, and of giving notice to the parties. When the parties appear, and virtually waive all objections to the process by their acts, and recognize the jurisdiction of the court over the case by their proceedings, it is then too late to move to dismiss. The case is in court, the jurisdiction has not been questioned, and if the subject-matter is one of which the court can take cognizance, the cause must be retained for trial on the merits.

The order dismissing the case was therefore erroneous, and the judgment must be reversed, and the cause remanded.  