
    Groves et al v. Richmond et al.
    X. Jurisdiction: when conferred bt consent. The rule that jurisdiction cannot be conferred by consent applies only where the court has not the right to assume general jurisdiction of the subject matter of an action; where the court has such general jurisdiction the parties may waive the ordinary process by which it is invoked.
    2. -: -: rule applied. Where the District Court granted a writ of certiorari in a matter of which the Circuit Court has exclusive jurisdiction, it was held that an agreement by the attorneys of the parties that the action should be transferred to the Circuit Court, and should stand as though originally commenced there, conferred upon such court jurisdiction to proceed and determine the questions involved in the action.
    
      Appeal from Palo Alto Circuit Court.
    
    Friday, April 22.
    This is a proceeding in certiorari to test the validity of an order made by tbe defendants submitting to vote tbe question of relocating tbe county seat of Emmet county. .Tbe .court dismissed tbe proceeding. Tbe plaintiffs appeal.
    
      Soper & Allen and J. W. Cory, Jr., for appellants.
    
      Jo. Harry Call, Geo. E. Clarice, and Coolbaugh <& Call, for appellees.
   Day, J.

This action was commenced in tbe Emmet county District Court, on tbe 1st day of September, 1879. The writ of certiorari was allowed by tbe lion. E. R. Duffie, district judge, September 14, 1879, and was issued and served on tbe. same day. On tbe 15th day of November, 1879, tbe de-? fendants filed their return and certified up tbe record of their proceedings. On tbe same day tbe defendants filed tbe application for a change of venue, and the court ordered that ■ tbe cause be transferred to tbe District Court of Palo Alto county., From this order tbe plaintiffs appealed, and tbe appeal was, afterward dismissed. See Groves v. Richmond, 53 Iowa 570. Pending this appeal, and in vacation, on the 6th day of January, 1880, the parties, by their respective attorneys, entered into an agreement as follows: “It is hereby stipulated and agreed by the parties to this action:

.“1st. That the same be transferred from the District Court of Palo Alto county, to the Circuit Court of Palo Alto county, Iowa, and that the same stand in said court, to all intents, and for all purposes, the same as though said cause .had been commenced in the Circuit Court.

“2d. That the same stand continued at the January term of said court.

“ 3d. That if in the appeal taken in this cause it shall be determined that this cause is not triable to a jury, over plaintiffs’ obection, that the cause be thereupon sent to Emmet county, Iowa, to be tried to the court.” This stipulation was entered into after counsel became aware of the decision in this court in Keniston v. Hewitt, 48 Iowa, 679, holding that the Cir-'court Court has exclusive jurisdiction in certiorari in civil matters. The stipulation was filed in the Palo Alto District Court, January 17, 1880. -At the January term of the Palo Altó Circuit Court the cause -was continued “ as per stipulation on file.” At the August term of said court the defendants filed a motion as follows: ■ “Comfes now J. II. Warren, •one-of the parties impleaded as a defendant in this action, and moves the court to strike from the files of this court the pretended writ of certiora/ri heretofore issued herein by the clerk of the District Court of Emmet county, Iowa, the order therefor made by E. R. Duifie, judge of the District Court of the 14th judicial district of Iowa, and the return thereto filed-,-, 1879, for the reason:

1st. The District Court, the clerk and judge theof, had no jurisdiction of the subject matter of said action and the same are null and void. The said J. II. Warren further moves the court to dismiss said cause, and to strike the same from the calendar for the following reasons:

“1. Because all the proceedings in said case are null and void.

“2. Because jurisdiction of the subject matter is conferred, if at all, by the writ of certiorari issued herein, and the same being void, the court has no jurisdiction of the subject matter.

“3. Because the District Court had no jurisdiction of the subject matter of this proceeding, and the same could not be prosecuted in either the District Court of Emmet county, or the Circuit Court of Palo Alto county, and the court cannot acquire jurisdiction by a transfer of the cause.

“4. Because more than one year from the date of the alleged irregularities and illegal acts complained of has elapsed, and no legal writ of certiorari having yet issued, none can now be granted.

“The. said J. H. Warren further moves the court that he be dismissed from this cause as a defendant herein, and as cause thereof shows that he is no longer a member of the board of supervisors of Emmet county, his term of office having expired, and his successor in office being duly elected and qualified.”

The plaintiffs thereupon filed a motion to substitute F. C. McG-rath and Chas. Jarvis as defendants in place of J. H. Warren and ITenry Barber, whose terms of office as members of. the board of supervisors of Emmet county had expired. In resistance of the motion to dismiss the plaintiffs filed the affidavit of E. B. Soper, one of the attorneys, stating in substance that he went to the office of Gfeorge E. Clarke, one of the attorneys of the defendants, and stated to him that he had discovered the case of Keniston v. Hewitt, 48 Iowa, 679, holding that the Circuit Court had exclusive jurisdiction in certiorari in civil cases, and that the proceedings in the cause in the District Court were of no effect, and that plaintiffs and their attorneys had decided to enter a dismissal of the casein the District Court and commence the case anew in the then impending January term, of the Circuit Court of Emmet county, unless the defendants would consent to. a transfer of said cause to the Circuit Court to stand there with all the proceedings as though had in the Circuit Court; that Mr. Clarke said he would consult with his associate, Mr. Call, and if he made no objections they would consent and stijoulate for the proposed transfer, and that subsequently the agreement herein above set out was signed. The defendants filed the counter affidavit of Geo. E. Clarke, as follows: “ That at the time E. B. Soper came to him in reference to the stipulation referred to by him in his affidavit, this affiant realizing the importance of winding up and settling the cause to the inhabitants of Emmet county, and being of the opinion that consent could not confer jurisdiction of the subject matter upon the Circuit Court of Palo Alto county, he entered into said stipulation therein referred to, thus hoping speedily to settle the much vexed question in accordance with the wishes of the majority of the people and voters of Emmet county.”

The motion of the defendant Warren was sustained, and he was dismissed from the cause as he prayed; Thereupon the court upon its own-motion dismissed the cause as against all the defendants upon the ground that the stipulation and the transfer of the proceedings from the District Court to the Circuit Court conferred no jurisdiction upon the Circuit Court to try the cause.

It is apparent from the affidavit of defendants’ counsél, the stipulation in the agreement for the continuance of the cause beyond the January term, and the action subsequently taken, that the stipulation was given for the purpose of continuing the proceeding until it should be too late to commence the action anew,, and then dismiss the proceeding for want of jurisdiction. The plaintiffs ought not to be deprived of a hear-' ing in this'manner, unless there is a real legal obstacle to the Circuit Court’s entertaining jurisdiction of the cause, urg®d by appellee that consent cannot confer jurisdiction. This is true where the court pas n0£ ^ asstime general jurisdiction of the subject matter. Consent could not confer upon the Circuit Court jurisdiction to try an indictment for murder. .But, where the court has general jurisdiction over the subject matter the parties may waive the ordinary process and voluntarily submit the question to the adjudication of the court. It is claimed that it is the writ which confers jurisdiction, and that as the writ was issued by the District Court it was void, and no jurisdiction was conferred by it. Under our system of procedure the petition calls into exercise the jurisdiction of the court. The writ is necessary to obtain jurisdiction over the defendant, and to obtain a certification of the records and proceedings sought to be reviewed. There is no reason why the parties might not waive the writ, and submit the questions to be determined by a voluntary appearance, and upon an agreed statement of facts, as in any other hind of action. Now, what was done in this case? The application for a writ had been made to the District Court, the writ had been issued, the return had been made, and the venue had been changed to the Palo Alto District Court. It was thereupon agreed by the parties to the action: “That the same be transferred from the District Court of Palo Alto county to the Circuit Court of Palo Alto county, Iowa, and that the same stand in said court, to all intents and for all purposes, the same as though said cause had been commenced in the Circuit Court.” The effect of this agreement is that the petition, writ and return shall be filed in the Circuit Court, as though the petition had originally been filed there, and the writ had emanated from that court. It may be conceded that this agreement could not give vitality to a writ issued by a court not having jurisdiction. We have seen, howevex', that the writ may be waived. Suppose the petition in this case, under oath as a petition in a certiorari proceeding is inquired to be, had been originally filed in the Circuit Coxxrt, and that thereupon the defendants had waived the issuance of a writ, and had filed, a transcript setting forth the action sought to be reviewed, and had ashed the court to determine the’question presented, can it be doubted that jurisdiction over tbe question would be thereby conferred? Now, that is just what was in effect done in this case. The mere fact that the petition and return were filed in the' District Court before they were filed in the Circuit Court certainly cannot affect their legal operation. Nor does the fact that a controversy arising in Emmet county was submitted to the Circuit Court of Palo Alto county affect the jurisdiction. If the cause had been originally commenced in the Circuit Court of Emmet county, the parties could have transferred it by agreement to the Circuit Court of Palo Alto county. If they could do this there is no reason why they cannot agree that the Palo Alto Circuit Court shall originally assume jurisdiction. The case is not like McMeans v. Cameron, 51 Iowa, 691, cited and relied upon by appellees.

In our opinion the court erred in dismissing this cause.

Reversed.  