Wells v. Mason

Citations

• 5 Scam. 84

Syllabus

<p>Error to Madison.</p> <p>x. WAiver-discontinuance by trial. A party by going to trial in the court below, without making any objection, waives a discontinuance, if one has previously occurred by reason of an omission to take proper steps to continue the cause in court.</p> <p>2. Jurisdiction — presumption. Every presumption is to be made in favor of the jurisdiction of a court of general jurisdiction.</p> <p>3. Same — same. The act of March 2d, 1839, provided that the causes pending in, and the records of, the municipal court of the city of Alton, should be transferred to the Madison circuit court, if a majority of the legal voters of the city should vote for the abolition of the municipal court. The record of a cause showed that the last proceedings in the municipal court were had at the April term, 1839, ar.d that the next proceedings were had in the Madison circuit court, at the April term, 1841; but the record no where showed how tne cause came into the Madison circuit court; but it did appear that the parties appeared and went to trial in the latter court: Held, that the supreme court would presume the happening of the contingency mentioned in the act, and that the cause was legally transferred to the Madison circuit court.</p> <p>4. Practice — no discontinuities, when. Where a plaintiff replies to a plea which answers only a part of a declaration, without taking judgment for the part unanswered, and there are other pleas which answer the whole declaration, he P 85] does not thereby discontinue his suit. Under the circumstances of this case, the plaintiff had his election to demur to the defective plea, or to take issue upon the same.</p> <p>5. ]vr\\sdictkm — presumption of, when. Nothing will be presumed in favor of the jurisdiction of an inferior court of limited jurisdiction. It is not sufficient, therefore, to aver generally that it has jurisdiction, where the gist of the action or defence depends upon its proceedings. The pleader must aver such facts as