
    Frosh v. Holmes.
    Where the defendant filed an amended plea with interrogatories annexed atone term of the court, and caused notice to be given to an attorney who was not on attorney of record in the case, and the amended plea and imerrogatorles were at the next term stricken out on ' motion of the plaintiff, whereupon the defendant asked leave to refile them, which was refused, after which the cause was continued: Held, That they were rightly stricken out, for the reason that they would have operated as a surprise and caused a continuance, and that the court for the same reason rightly refused to permit them to be refiled; that if after the continuance of the cause the leave had been asked it would doubtless have been granted.
    Where, after an order for the change of venue, the parties appear in the same court and there litigate the cause to final judgment, the presumption is that the change of venue was waived.
    Ir. order to fix the liability of the indorser in the special mode pointed out by the statute (by suit against the maker) it is not necessary to aver a presentment for payment; it is evident that demand was not contemplated any more than notice. (Note 4.)
    Error from Galveston. This suit was brought in the District Court of Galveston comity by the defendants in error against the plaintiff in error as iu-dorserof a promissory note. At the Spring Term, 1848, the defendant'obtained an order for a change of venue to the county of Brazoria. No action appears to liave been taken upon this order. At the Fall Term, 1843, the cause was continued by the defendant as on affidavit. At the Spring- Term, 1849, the defendant amended his answer and propounded interrogatories to the plaintiffs, who resided in Louisiana. A copy of the interrogatories was served on an attorney of the court as attorney of record of tile plaintiffs, but who docs not appear to have been at that time or previously an attorney of record. At the Fall Term thereafter, when the cause was ealled for trial, the plaintiffs moved the court to reject the amended plea and the interrogatories annexed to if. which motion the court sustained. The defendant therefore asked leave to rolile them, which the court refused. The case was subsequently continued. At the Fall Term, 1S50, there was a verdict and judgment for the plaintiffs. A point was made that the petition did not aver a presentment of the note to the maker for payment.
    
      A. P. Thompson, for plaintiff in error.
    1. It will be seen from the record that a change of venue was ordered, and consequently all subsequent proceedings were in error. (Hart. Dig., art. 630.)
    [I. It will be seen that interrogatories were propounded to the plaintiff, duly served, &o„ and afterwards erroneously stricken out. The statute gave the defendant a right to purge the conscience of his adversary relative to the matter in dispute, (Hart. Dig., art. 735,) and the court below erred in striking out. It was a rig!it of the defendant which lie luid not waived, as was presumed in 2 Tex. It., 25S, but insisted on.
    
      W. Alexander, also for plaintiff in error.
    The District Court of Galveston couuty had no jurisdiction over the case after the expiration of the term at which the venue was changed to Brazoria.
    Article 653 of Hartley’s Digest, when construed with reference to arti-ele YU, section 14, of the Constitution of the State of Texas, affirms and reenacts articles 636 and 637 of Hartley’s Digest.
    Note 4. — Sydnor t>. Gascoigne, n T., 149.
    The change of venue cannot be considered by the court in the exercise of its appellate jurisdiction when it does not appear to have been objected to in the court below. (2 Tex. R., 694; 3 Tex. R., 305; 4 Bibb. R., 399.)
    The jurisdiction of the District Court of Galveston county could not be exercised for any purpose at a subsequent term. (3 Tex. R., 517, and the cases there cited.)
    Consent cannot give jurisdiction. (1 Tex. R., 48; Dallam, 523.)
    
      J. B. Jones, for defendant in error.
   Wheeler, J.

It is insisted for the plaintiff in error that the court erred — ■ 1st, In striking out and rejecting the interrogatories propounded to the plaintiffs; 2d, In proceeding to try tire case in Galveston county after the order for a change of venue.

1. The interrogatories do not appear to have been served upon the plaintiffs or their attorney of record, nor does it appear that either had notice of them until the cause was called for trial. They were then rightly stricken out, for the reason that they would have operated a surprise upon the plaintiffs and a continuance of the cause. And the court rightly refused to permit them to be then refiled for the same reason. That would have been, in effect, to have reversed the decision by which they were stricken out. If, after the subsequent continuance of the cause, the defendant liad asked leave to amend his answer and to propound interrogatories to the plaintiffs, there being then time to serve them before the next term, it would doubtless have been allowed him. But under the circumstances the interrogatories were rightly rejected.

2. After the order for a change of venue the parties appeared, disregarded the order, and proceeded to litigate the case to final judgment in the county of Galveston. The presumption is that they consented to waive the change of venue, as it doubtless was competent for Ihem to do.

Where a court has not jurisdiction of the subject-matter consent cannot give it. But if a party lias some privilege which exempts him from the j urisdiction, as, for instance, that of a defendant to be sued in the county of his residence, he may waive it if chooses; and though the court has not acquired jurisdiction of the person of the defendant by the service of process upon him, lie may appear and submit his person to the jurisdiction of the court, and if lie do so it will be a waiver of the objection. There can be no question in this case that the court liad jurisdiction of the subject-matter; nor can there be a question that it was competent for the parties, by consent, to waive the change of venue after having obtained the order for that purpose, to submit their persons to the jurisdiction' of the court in Galveston county, and to litigate their rights there. Having done so, the defendant cannot now object to the want of jurisdiction of his person in that county. .

It lias been held that where an indictment was found in one county and the case was tried in another, the record not showing a change of venue, nor that any objection was made to the jurisdiction of the court iii the latter comity, a change of venue will be presumed. (6 Blackf. R., 529.)

It surely is not going farther to presume that the order for a change of venue in this case was waived.

There is, we think, nothing in the objection tiiat to fix the liability of the defendant as indorser under the statute it was necessary to aver a demand of the maker. The statute prescribes a different mode of fixing the liability of the indorser, in which it is evident demand was not contemplated any more than notice.

There is no other question in the case deserving of attention. We are of opinion that the judgment be affirmed.

Judgment affirmed.  