
    Union County v. Knox County.
    
      (Knoxville.
    
    October 1, 1891.)
    ■i. Abatement, Plea in. Waiver of.
    
    Plea in abatement to local jurisdiction of Chancery Court is waived, if the defendant demurs or obtains time to answer after his plea has been set down for argument and held insufficient.
    Cases cited and approved: Wilson v. Scruggs, 7 Lea, 635; Simpson v. Railroad, 89 Tenn., 304.
    2. Same. Bad in substance.
    
    Plea in abatement presents no grounds to defeat the local jurisdiction of Chancery Court, where it avers that a county cannot maintain suit in its own Chancery Court to prevent the taking of a portion of its territory by another county under color of an unconstitutional Act of the Legislature.
    3. Counties. Unconstitutional Act changing county line.
    
    A statute changing the line between two counties is unconstitutional if it cuts off territory from one county which lies within eleven miles of its court-house and transfers such territory to the other county.
    Constitution construed: Art. X., Sec. 4.
    Act construed: Acts 1889, Ch. 194.
    
      Question reserved: Whether a statute is void upon its face for uncertainty which provides “that the lines between Knox and Union Counties be so changed as to include the lands of Charles H. Smith, R. H. Harless, A. K. Mynatt, L. D. Bates, and Joseph Bates in Knox County.”
    PROM UNION.
    Appeal from Chancery Court of Union County. II. R. Gibson, Ch.
    
      John P. Posers and J. L. Rogers for Union County.
    "Washburn & Templeton for Knox County.
   SnodgRáss, J.

By an Act approved April 4, 1889,. tlie Legislature undertook to change the county line between the counties of Knox and Union. The Act, passed April 1, 1889, and found on page 384 of published Acts of .that session, is in the following words:

“Be it enacted by the General Assembly of the State of Tennessee, That the lines between Knox and Union Counties be so changed as to include the lands of Charles H. Smith, R. II. Harless, A. K. Mynatt, L. D. Bates, and. Joseph Bates in Knox County.”

The points in the change of line were not indicated otherwise, or further than might be developed according to the location of lands belonging to the several parties named, which of course gave no information to the body of the Legislature as to whore or how they were ehangiug'the line, or how or where it would thereafter run. In fact it, at the designated lands, already ran in less than eight miles of the county seat of Union County, and by this change was made to run within about six miles of said county seat and the court-house situated therein.

The bill in this cause, .alleging that the Act was unconstitutional and void, was filed in the Chancery Court of Union County to have it declared so.

Process issued and was executed upon Knox County. It appeared by attorney, and plead in abatement to the jurisdiction of the Court. The plea was set down for argument, and was held bad, and respondent ordered to answer. On its application, thirty days wore allowed for this defense. A part of the record in the cause is lost, and is supplied by agreement. But neither that before us, nor the agreement, shows any further defense made, though it is argued by counsel that a demurrer was filed; and the bill was taken for confessed and final decree entered against defendant. It appealed in error. The brief assigning errors and argument of counsel is alone on the question of jurisdiction.

If there was any question as to the jurisdiction, it was waived by appearance either to demur or to ask time to answer after the plea was held insufficient. Wilson v. Scruggs, 7 Lea, 635; Simpson v. Railroad Company, 5 Pickle, 304.

The last case, which in express reference approves the first cited, is assumed by counsel for defendant here to modify it, because it was there held that where such plea was declared insufficient, the defendant had the right to plead over. But no such application follows. The point decided was that he had the right to plead over if he elected to do so, and, if ho so elected, complainant was not entitled to a final judgment. The question being whether or not defendant, could plead over if he elected, it was held that he could, just as held in the 7 Lea case, hut not upon other or different terms than therein declared. There it was held that if he elected to plead over he waived the benefit of his plea to the jurisdiction. In the subsequent (■.ase it was held that if he elected to plead over, while he waived such advantage, he defeated complainant’s right to a final judgment. The question determined was an entirely different one from that settled in the first case — one case dealing with one question and the'other with another; neither bearing any necessary relation to the other, and certainly no inconsistent relationship.

J3ut, passing this question, the plea was bad. If the Act of the Legislature was void, the section of Union County cut off remained there notwithstanding the form of legislative enactment declaring the contrary. The territory continued to be that of Union County; and when Knox County entered upon it and assumed jurisdiction of it, that county was a trespasser within the boundary of the other, and suit was properly brought in the latter, averring the invalidity of the Act.

Whether the Act — not defining any territory taken off or added, not pointing out any points or objects on the line changed, giving no boundaries other than might be found by surveying all lands of the parties named in it, wherever they might lie or by whatever title held — could be valid on its face it is not necessary here to say, inasmuch, as if valid in form it is void in fact, because it brings the line of Union County nearer than it was to the court-house of the county, although when the Act was passed it was already within eleven miles thereof. The fourth section of Article X. of the Constitution forbids such encroachments in the formation of new counties; and we hold it applies ^to the addition of new territory to old counties, and that' new counties cannot he formed, in whole or in part, out of fractions of old ones, if to do so it is necessary to remove the lines of the old nearer than eleven miles .of the court-house of the county, or nearer when they are already established within eleven miles.

The decree was therefore correct, and is affirmed with cost.  