
    I. R. Heggie v. I. B. Stone.
    1. Constitutional Law. Mayor as ex officio justice of the peace. Jurisdiction.
    
    Under constitution I860, providing for the election in each comity, by districts, of a competent number of justices of the peace, it was not in the power of the legislature to_ give the mayor of a town the jurisdiction of a justice as to that part of the justice’s district outside the town.
    2. Jurisdiction. Waiver. Appeal to circuit court. Code 1880, § 2354.
    When, by a town charter, the jurisdiction of a justice for the entire district is attempted to be vested in the mayor, one residing outside the corporate limits, though within the district, who is sued before such officer, does not, by appearing and defending on the merits, waive the right to urge in the circuit court, on appeal, the want of jurisdiction, since ji 2354, code 3880, provides for a trial de novo on appeal, and requires the circuit court to dismiss causes where the justice had no jurisdiction.
    From the circuit court of the second district of Carroll county.
    Hon. C. H. Campbell, Judge.
    The town of Vaiden is situated in district five, Carroll county. By the charter of the town, the mayor was made ex officio justice of the peace for the district, and Heggie sued Stone before him on a cause of action which arose outside the corporate limits. The defendant resided outside the town, but within the justice court district. The parties appeared, and, without any objection being raised as to jurisdiction, the case was tried on its mei’its, resulting in a judgment for defendant, from which plaintiff appealed to the circuit court. In that court the defendant moved to dismiss the case, on the ground that the mayor, as ex officio justice of the peace, had no territorial jurisdiction. The above facts were shown, and the motion was sustained. From a judgment of dismissal the plaintiff appealed.
    
      Somerville &; McGlurg, for appellant.
    1. In dismissing this case, the circuit court acted upon the authority of Bell v. McKinney, 63 Miss., 187. We note the following-as to that case: (1) That a mayor’s court is an
    “inferior court,” within the meaning of the constitution. (2) That neither the charter construed, nor the act of 1886, conferred on the mayor criminal jurisdiction outside the corporate limits. This was not attempted. (3) The corporate limits embraced a part of two counties, and the court says the act of 1886 did not give the mayor jurisdiction “co-extensive with the limits of two counties.”
    To give the mayor, as ex officio justice, jurisdiction within the limits of the district, is not violative of the principles announced in Montross v. State, 61 Miss., 4?9. He could be appointed or selected in any legitimate manner.
    (2) The defendant waived the question of jurisdiction- by going to trial on the merits, and not pleading in abatement. That the trial in the circuit court on appeal is de novo, does not change this. Where a court has jurisdiction of the subject-matter, appearance and pleading to the merits will give jurisdiction of the pei’son. 57 Miss., 634; 59 lb., 189.
    
      Sweatman, Trotter ‡ Knox, on the same side.
    
      Brewer § Wilson, for appellee.
    1. The mayor of Vaiden is elected by the citizens of the town alone, and not by the voters of the entire district. The legislature could not, under the constitution, confer upon him the jurisdiction of a justice of ithe peace as to the territory outside the corporate limits. Bell v. McKinney, 63 Miss., 187. Therefórethe court had no jurisdiction.
    2. The appellee cannot be held to have waived any thing. He could make any available defense in the circuit court, for there the case was to be tried de novo. Where the court has no jurisdiction there can be no waiver. On this point, see. Bice v. Locke, 59 Miss., 189.
    
      1. T. Blount and B. N. Miller, on the same side.
   Campbell, C. J.,

delivered the opinion of the court.

Under the constitution of 1869, which provided that “a competent number of justices of the peace and constables shall be chosen in each county by the qualified electors thereof, by districts,” it was not in the power of the legislature to clothe the mayor of a town, comprising a part of a district for the election of justices of the 'peace, with the official character and jurisdiction of a justice of the peace for the district outside of the town; and the charter of Maiden, which contains a provision making the mayor ex officio a justice of the peace beyond the territory of the town, was, as to that, inoperative and void. Therefore, this case was not within the territorial jurisdiction of this justice of the peace.

The appearance of the defendant before the justice of the peace in Maiden was not a -waiver of his right to raise the question of the jurisdiction of the justice of the peace in the circuit court. Code of 1880, § 2354, expressly secures this right.

Affirmed.  