
    No. 74.
    James H. Raney, plaintiff in error, vs. John N. McRae, defendant in error.
    jy] Where the judgment is entered up for a larger amount than -the verdict or confession, the irregularity may he cured, provided the plaintiff mil ¡remit the excess.
    J 2.] in England, if suit he brought upon a joint contract, if both parties are alive and within the realm, they mnst both be sued; and judgment cannot be rendered against one, until the other is prosecuted to outlawry — aliier in this State, trader the Act of 1820.
    ■J3-] A defect, apparent on the-reeord, and which wpuld be good in. arrest of judgment, is no ground for setting aside the judgment, eleven years after " its rendition!
    
       Parties, by consent, express or implied, cannot give jurisdiction to the Court, as to the person or the subject-matter. It may be waived, however, as to the person, so far as the rights of the parties., themselves are concerned; hut hot so as to prejudice third persons.
    ^5.] The omission to allege, in the declaration, that the defendant resides in the county where the Bnitis brought, is amendable ; may be waived by plead-, ing to the merits; is cured by verdict or, confession ; is not good in arrest of judgment; and cannot be made available in the Supreme Court.
    Motion to setaside judgment-. Stewart Superior Court. l)eeision by Judge Iverson, October Term, 1853.
    
      In March, 1840, John N. McRae brought suit in Stewart Inferior Court, against James H. Ranoy and William Y. Raney, npon a joint contract. The declaration did not allege that cither of them resided in the county. The Sheriff returned service upon James II. Raney; and immediately below this service, was this entry: “ William Y. Raney not served, April 14th, 1840. -Sh’ff”; without the name of. the Sheriff. James H. Raney appeared, and pleaded the general issue and payment. Upon the trial, he confessed judgment, and appealed to the Superior Court. In that Court, at November Term, 1842, James V. Raney again confessed judgment to the plaintiff.
    At April Term, 1858, James V. Raney moved the Court to vacate and annul the judgments : 1st. Because the suit was on a joint contract, and Win. Y. Raney not being served, and no proper. return being made as to him, the! suit abated and the judgment was void. 2d'. Because the judgment confessed was for $221 *Qg, and the judgment entered, is for a larger amount, viz: 221 On motion of plaintiff's counsel, & remitter was entered for the excess, and the motion to vacate the judgment refused. This decision is assigned as error.
    Thomas & Downing, for plaintiff in error.
    M. J. Wblborn, for defendant in error.
   By the Qowrt.

Lumpkin, J.,

delivering the opinion.

An action of assumpsit was brought in the Inferior Court of Stewart county, in 1840, by John N. McRae, against James H. Raney and William Y. Raney, on a joint note of the defendants, for $221 jifo- It was not alleged, in the writ, that either of the defendants resided in the county. James II. Raney alone was served. Immediately following the endorsement of service, on the declaration on James' H. Raney, by Robert Reeves, Sheriff, is the entry: “ Win. V. Ranoy not served, 14th April, 1840”; the Sheriff’s.namo not being subscribed.

James H. Raney, the defendant who was served, appeared and filed the plea of the general issue and payment; and at the trial term, confessed judgment for the debt, with cost of suit, tic entered an appeal, in his own name, to the Superior Court, giving one Bryant Ross, as his security. On the appeal trial, in July, 1842, he again confessed judgment for the wholo amount of the plaintiff’s demand.

At April Term, 1853, James H. Raney moved the Court to vacate tiro judgment rendered against him, because he and Wm. V. Raney wore sued together, as joint obligors, and he alone was served, and that his co-defondant was not served; nor did the Sheriff return as to him — that he was not to be found. And further, because said judgment was entered up for a sum, other, and different, and greater, than the confession was for.

As to the variance between the judgment and the confession, of GO cents, that is cured by the remitter voluntarily-entered by the plaintiff, and requires no further notice. The. maxim de minimis, if ever to be invoked, should bo applied on this occasion.

In England, in a suit upon a joint contract, if the facts do not appear from the plaintiff’s writ, that the other joint contractor is within the realm and in life, the defendant must bring it before the Court by a plea in abatement. If, however, the facts arc disclosed by the plaintiff himself, that the other joint contractor is alive and within the jurisdiction of the-Court, then the defendant may demur, move in arrest of judgment, or take advantage of the defect by writ of error. Then, to avoid tho consequences, the plaintiff is compelled to prosecute the other joint defendant to outlawry. (1 Citty’s Pl. top p. 27, marg. 29. 1 Saunders' Rep. 290, 291, note.)— The Statute of this State, of 1820, was intended to relieve parties, plaintiffs, irom this proceeding; and in lieu of it, it provides that if the Sheriff returns that the other joint contractor is not to be found, the plaintiff may proceed against the party served. [Oebb's Digest, 484,-’5.)

In the caae before us, it appears that both of the joint contractors are alive, for both are sued. It not being alleged, however, in the declaration, that either of the defendants lives, in the county whore the suit was brought, it may be - questionable whether the onus is not upon the defendant, to show, by his plea, that the defendant not served, is alive and suable. But waiving this point, and adopting the suggestion of Lawrence, J., in Smith vs. Torrance, (2 Taunton Rep. 256,) that persons sued as living, are presumed to- continue alive: and passing by the further fact, that the appearance of Jamos IL Raney and pleading and confessing judgment on both trials, in both. Courts, ma}r amount to a waiver of want of any proper return as to William V. Raney, we come to the inquiry:

First. As to the judgment rendered in this case. Is it void or voidable only? It is not a void judgment. The Court which gave it, had jurisdiction both of the person of the defendant, and the subject-matter of suit. And the defendant, against whom the judgment was rendered, was legally served. It is an erroneous judgment only; and the error is one which could have been taken advantage of, by motion in arrest of judgment. None was made. Is the motion of 1853, cloven years afterwards, to set aside the judgment, not for want of service of the other joint-contractor, or of jurisdiction in the Court, anything else, in effect, but a motion in arrest of judgment ?

But the defendant comes too late for this purpose. Ho had his day in Court. Why did he not avail himself of it ? To countenance a practice like this, would be to encourage the grossest laches. Parties die; witnesses die or move off; and yet, at this late day, it is proposed to vacate a judgment for a defect apparent upon the record, and which would have been good in arrest of judgment at the time it was. rendered, eleven, years previously ! And this, too, at the instance of a- party who had been regularly sued and served, and who pleaded to the merits, and confessed judgment on both trials.

If the error complained of, was not apparent on the record, and' consequently not good in arrest of judgment;, or if the party had not been, served, and consequently, from this or' other cause, had not had his day in Court, the rule would be different.

But it is further insisted, that this judgment is a nullity, for want of jurisdiction in the Court to give it. And this exception is founded on the fact, that this declaration docs not ayer that thfe defendants resided in Stewart county.

Parties cannot, by consent, whether express or implied, confer jurisdiction over the subject-matter. Tildes to land must be tried in the Superior Court, and in the county whore they lie. But it is otherwise as to the person. The provision in the Constitution, fixing the residence of the defendant, as the place of trial, guaranties a personal privilege, which may be waived, so far as the rights of the parties, themselves, are concerned ; but not so as to prejudice third persons. And I speak what I know, when I say that the opinion of this Court, in The Central Bank of Georgia against Gibson, (11 Ga. Rep. 453,) was not intended, nor so understood at the time, to be in conflict with this principle. At the close of that case, my Brother Nisbet puts that decision upon the proper ground. — He says : The Bank is a public corporation — its funds belong to the State — all the people are interested in them. The Legislature has made it suable at MiUedgeville. Reasons of public policy require, that it should be sued there alone, which reasons do not apply with the same force to individuals”. It was for the reasons thus stated, that this Court held, that the Bank could not waive jurisdiction, and submit to be sued in Muscogee, instead of Baldwin county.

Besides, the omission in the plaintiff’s writ was amendable at any time. It was waived by pleading to the merits; it is cured by the confession of judgment. It would not be good, on motion, in arrest of judgment; it cannot be made available in this Court.  