
    (47 South. 753.)
    No. 17,113.
    BERNSTEIN v. DALTON CLARK STAVE CO.
    (Nov. 30, 1908.)
    1. ABATEMENT AND REVIVAL (§ 82*) — -EXCEPTIONS — TIME oe Pleading — Plea Aeteb AnS WEE,
    The plea of want of jurisdiction rationa materise was interposed after the answer had been' filed.
    [Ed. Note. — For other cases, see Abatement and Revival, Dec. Dig. § 82.*]
    2. Abatement and Revival (§ 82*) — Time fob Plea — Filing Aeteb Answeb — Rations MATEELE.
    If there had been ground for filing that plea, time would be of no importance, as it may be filed at any time.
    [Ed. Note. — For other cases, see Abatement and Revival, Dec. Dig. § 82.*]
    3. Abatement and Revival (§ 84*) — Pleading (§ 104*) — Want oe Jubisdiction — Time oe Filing — No Exception Ratione Peb-SONiE.
    The exception of want of jurisdiction ra-tione persons has never been filed.
    It would not have been in time to file an ex•ception of want of jurisdiction ratione personas after the answer.
    One exception cannot do service for another, the pleas being different. In any event, the exception of want of jurisdiction ratione materise cannot do service of an exception ratione personae.
    As to the exception ratione materise, the court has jurisdiction.
    [Ed. Note. — For other cases, see Abatement and Revival, Dec. Dig. § 84;* Pleading, Cent. Dig. § 214; Dec. Dig. § 104.*]
    4. Appeaiíance (§ 23*) — Waiver of Objections — Place to Sue.
    One must be sued before his own judge. Code Prac. art. 165.
    By answering defendants accepted jurisdiction of the court of its domicile.
    The judge of the place of an alleged trespass shall have cognizance (paragraph 8, art. 165) yields to the first general rule when the defendant actively accepts jurisdiction at his own domicile by filing an answer.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 111-117; Dec. Dig. § 23.*]
    (Syllabus by the Court.)
    Appeal from Fifth Judicial District Court, Parish of Winn; George Wear, Judge.
    Action by Joe Bernstein against the Dalton Clark Stave Company. Judgment for defendant. Plaintiff anneals.
    Reversed and remanded.
    Nettles & Teer, for appellant. Harry Pollard Gamble, for appellee.
   BREAUX, O. J.

The plaintiff sued for $3,-000 for alleged damages for the asserted cutting down and destroying of his trees.

The lands on which the trees were cut down are situated within the limits of the parish of Grant.

Plaintiff brought his suit in the parish of Winn, where the defendants have an office and a stave factory.

Service was made on defendant company’s agent and manager at the office of the company.

Defendants make no issue on the ground that the suit could not be brought within the parish of Winn as relates to domicile, if the suit was properly brought in that parish.

Plaintiff alleges in his petition that he is the owner of the property; that he has title. He sets forth his title and alleges that he is in possession.

He charges that the defendant without right illegally and wantonly went upon the land, took illegal and forcible possession, and without his knowledge cut and destroyed many valuable trees, for which he claims damages as above stated.

Plaintiff further charges that defendant in so doing committed trespass, and he prays for damages.

Defendants filed a general deniál, and said that they bought the property in good faith, that the title was good and sufficient, and that they went into possession of the property and cut down trees.

After this answer had been filed, placing the case completely at issue on the merits, the defendants filed an exception of want of jurisdiction ratione materise.

The judge of the district court maintained the exception and dismissed the suit.

The defendants cannot be heard to object to the court’s jurisdiction ratione personae after appearance on the merits.

As to the exception ratione materise there is no ground for an exception of want of jurisdiction.

The court had jurisdiction of the subject-matter pleaded.

We will not affirm a judgment dismissing the suit on the ground that the court was without jurisdiction ratione personae when that exception is not presented by the pleadings.

There are two distinct pleas as relates to jurisdiction: One ratione personae, and the other ratione materise.

The plea of want of jurisdiction ratione personae must be specially pleaded. It cannot be supplied.

Furthermore even if the defendants had pleaded the want of jurisdiction ratione personae as the plea was filed after the answer, they would be without right to a dismissal of the suit.

The plea being here one of ratione materise presents the only issue for decision.

By filing the answer, defendants in effect waived jurisdiction ratione personae, and, in addition, we will not undertake to sustain the plea of want of jurisdiction ratione per-sonte on an exception of want of jurisdiction ratione materise.

Furthermore, parties may waive jurisdiction ratione personae. Phipps v. Snodgrass, 31 La. Ann. 88; Marqueze v. Le Blanc, 29 La. Ann. 194; Ranlett v. Collier White Lead Co., 30 La. Ann. 56; Stackhouse v. Zuntz, 36 La. Ann. 529.

This court has decided that the filing of the answer without objection was in effect a waiver of jurisdiction ratione personae.

A very similar question was passed upon in State v. Buck, 46 La. Ann. 656, 15 South. 531, and in that case effect was given to the appearance which had been filed before the exception was interposed by the defendant.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is avoided, annulled, and reversed.

It is ordered, adjudged, and decreed that the case be reinstated for trial and be tried as if it had not been dismissed.

Appellees to pay costs of the appeal, and the costs of the lower court to await final decision of the case.  