
    *M’Alexander v. Hairston’s Ex’or.
    July, 1839,
    Lewisburg.
    (Absent Brookm, J.)
    Continuances — Sickness of Defendant— Case at Bar.— An action of slander is commenced on the 21st of July, in a circuit court; but the judge of that court being related to one of the parties, an order is entered on the 27th of September, by consent of the parties, sending the case to the county court. On the 20th of November, a motion is made to the county court for a continuance, on the ground that the defendant had been confined to his bed by sickness for some time ^previous, and was still so confined, so that he could not attend to the case in person and prepare himself for trial; and it is admitted by the plaintift’s counsel that such had been and still is the situation of the defendant. But a trial being nevertheless urged, the court is divided on the motion for a continuance, and the same being overruled, a verdict and judgment are rendered against the defendant. HEM), the county court erred in so ruling the defendant to trial, at the term next after the cause had been transierred to that court, and at which it was docketed in that court for the first time.
    Jurisdiction — Cause Docketed by Consent. — Parties may, by consent, make up the pleadings and issue in a case, and have it docketed in any court having jurisdiction to try such a case; and on the parties appearing before the court in which a case may be so docketed, and making no objection to the regularity of the docketing of it, that court may exercise jurisdiction over the case; and an objection to the jurisdiction of the court, made for the ñrst time after the trial of the case and judgment therein, cannot be sustained. Per Stanabp, J.
    On the 21st of July 1834, Samuel M’Alexander sued out oí the office of the circuit court of Floyd county a writ of capias ad respondendum against Samuel Hairston senior; and at August rules 1834, the plaintiff filed his declaration. It was an action for slander. The general issue was pleaded in court on the 27th of September 1834, and after the entry thereof, the record proceeds as follows: “But the judge being delicately situated in his relationship to the parties, by consent of'x'the parties the trial of the issue is sent to the county court of Floyd.”
    In the county court, on the 20th of November 1834, a motion was made for a continuance, on the ground that the defendant, who resided in the county of Franklin at a distance of 20 miles from the courthouse of Floyd, had been confined to his bed by Sickness for some time previous, and was still so confined, so that he could not attend to the case in person and prepare himself for trial. The plaintiff’s counsel admitted that such had been and still was the situation of the defendant, but urged a trial. The court being divided on the motion, the same was overruled; and the defendant excepted to the opinion.
    Whereupon the cause being tried, a verdict was found for the plaintiff for 250 dollars damages, and judgment rendered for the same.
    Soon after the judgment, Hairston died, and Joab Early qualified as his executor. Early, in his character of executor, petitioned the judge of the circuit court of Floyd for a supersedeas to the judgment; and it was allowed.
    In the circuit court of Floyd, at April term 1835, the following entry was made: “The service of the writ of supersedeas being confessed, and the judge of this court being delicately situated by reason of his relationship to one of the parties, by consent of the parties by their attorneys, this cause is removed to’ the circuit superior court of law and chancery for the county of Montgomery.”
    
      On tlie 27th of May 1835, the circuit court of Montgomery reversed with .costs the judgment of the county court of Floyd, and ordered that the cause be remanded to that court, to be dismissed, upon the ground that the said county court had no jurisdiction to hear and determine the cause.
    To this judgment, on M’Alexander’s petition, a supersedeas was awarded.
    *Preston for plaintiff in error.
    Taliaferro for defendant in error.
    
      
      Continuances — Absence of Party. — In Logie v. Black, 24 W. Va. 23. it is said: "The presence of a party to a suit to aid and assist his counsel in the trial is not ordinarily considered essential; and very many cases are tried in the absence of the parties. And the absence of the party not as a witness but simply as a party to aid his counsel in the trial of a case would but rarely be regarded as a ground for a continuance, especially when there had already been one or more continuances. Certainly it would not in any case be regarded as good ground for a continuance, though he was necessarily absent, unless there was satisfactory evidence, that in that particular case it was a matter of great importance to his interest, that the case should not be tried in his absence. The case of M' Alexander v. Hairston’s Ex’or. 10 Leigh 480, shows only that when there are strong reasons why a case should be continued, some weight would be attached to the fact, that the party asking a continuance had been prevented by severe illness from making preparation for the trial.”
      See further, monographic note on "Continuances” appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
       Jurisdiction- Cause Docketed by Consent. — The principal case was cited with approval and followed in Bell v. Farmville, etc., R. Co., 91 Va. 104, 20 S. E. Rep. 942; Hunter v. Stewart, 23 W. Va. 557.
      .See further, monographic note on "Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   STANARD, J.

Without deciding or even considering the question whether the order of the superior court, made by consent of parties, remitting this case to the county court for trial, would proprio vigoré place the case, in its then condition, in the county court for trial, notwithstanding an objection of one of the parties to the docketing of the case in the county court and 'to the jurisdiction of that court over it, I am of opinion that parties may, by consent, make up the pleadings and issue in a case, and have it docketed in any court having jurisdiction for the trial of such a case'; that over a case so docketed, on the parties appearing before the court in which it may be so docketed, and making no objection to the regularity of the docketing of it, that dourt may exercise jurisdiction'; and'that the objection to the jurisdiction of' the eourt, coming for the first time aftér the trial'and judgment in the case, cannot be sustainéd.

I am further of opinion that it was too rigorous, under the facts disclosed by the exception, shewing th.e disability of the defendant, from the visitation of God, to attend to the defence of the case, to rule him in the court below to trial in the absence of his witnéssgs, át the first 'term of that court after the order réihitting' the. case had been made;' especially' as it does’ not appear, that under the’order remitting the case to the county court, it had ‘been docketed in that court at any time previous to the term at which it was tried, so as to enable the defendant, even if severe illness had not prevented him from making preparations for trial, to take out process to summon his witnesses. ‘

My opinion therefore is, that the judgment of the county court, and that of the circuit superior court reversing it and remanding the case to the county court to be dismissed for want" of jurisdiction, are both of *them erroneous, and ought, to be reversed, with costs to the plaintiff in error in prosecuting his suit in this court. I am, further of opinion that the superior court ought to have' reversed the judgment of the county court; and as the original action did not survive, and the defendant therein was dead at the time the judgment was rendered in the superior court, and the action could not, on the remanding of the case to the county court, be revived, the reversing judgment of the superior court should have remanded the case to the county court with directions to enter an abatement by reason of the death of the original defendant Hairston.

The judgment of the court of appeals was entered in the following terms :

The court (without deciding the question of jurisdiction arising in this case) is of opinion that the county court of Floyd erred in ruling the defendant to trial, at the term next after the cause had been transferred by the said circuit superior court to the said county court, and at which it was docketed for the first time; especially when it was proved and admitted that the defendant had been confined to his bed by sickness for some time previous, and was still so confined, so that he could not attend said court and prepare himself for trial. Therefore it is considered by the court, that the judgment of the circuit superior court of Montgomery, reversing the said judgment of the county court of Floyd, be affirmed, and that the defendant recover against the plaintiff his costs by him about his defence in this behalf expended. And the said Sa.muel Hairston senior having departed this life, and the court being of opinion that the action does not survive against his executor or administrator, it is ordered that this suit be abated.  