169 Ky. 487 | Ky. Ct. App. | 1916
Affirming.
This was a proceeding in the name of the Commonwealth of Kentucky, for the use and benefit of Orpha Branham,, and her bastard child, under chapter 10, Kentucky Statutes, agáinst Nelson Adkins to require him to contribute t,o the support of the illegitimate child of Orpha Branham, of which Adkins was accused of being the father. The warrant, which was issued by the clerk of the Pike county court, charged the appellant with being the father of the illegitimate female child of Orpha Bran-ham, which was born on the 11th day of November, 1913, in Letcher county, Kentucky. Adkins, on the 26th day of September, 1914, being before the judge of the Pike county court, executed bond for his appearance before that court, as required by section 168, of Kentucky Statutes. The record does not show any order to have been made in the case at the October term of the county court, but at the December term, 1914, the appellee obtained a continuance of the case, and at the January term the appellee filed a special demurrer to the proceedings, upon the ground that the Pike county court did not have jurisdiction of the subject matter of the action. The county court sustained the demurrer and dismissed the proceedings. The appellant appealed from the judgment of the county court to the Pike circuit court. Upon a hearing in the circuit court,' the demurrer was sustained and the cause dismissed, and from this judgment the Commonwealth, by the county attorney, has brought the case to this court upon appeal.
The grounds relied upon for reversal of the judgment of the circuit court and county court are that the court erred in adjudging that the Pike county court did not have jurisdiction of the subject matter of the action, and, furthermore, erred in adjudging that the appellee did not waive his right to object to the jurisdiction of the court by entering his appearance to the warrant and obtaining a continuance of the case at the December term of the county court before' filing his special demurrer.
This character of action is a special proceeding and is in the nature of a civil action, and is governed by the provisions of chapter 10, of the Kentucky Statutes. Sections 167,168, and 169, of the statute, supra, provide, that an unmarried woman may go before the clerk of the county court of the county wherein she has been de
Subsection 4, of section 92, supra, provides, that if either of the above mentioned grounds are shown to exist by a pleading it is waived, unless distinctly specified by a demurrer thereto, except the objection to the jurisdiction of the court of the subject of the action, which objection is not waived by failing so to make it. Likewise, section 118, of the Civil Code, provides, that a party may, by an answer or other pleading, make any of the objections which are mentioned in section 92, which are not shown by the pleading of his adversary, and a failure so to do is a waiver of any of said objections, except that to the jurisdiction of the court of the subject of the action. Hence, it appears that a defence to the merits of an action is a waiver of the right to object because of the court’s want of jurisdiction over the person of the defendant, and wherever the court has jurisdiction of the subject matter, the objection for want of jurisdiction over the person of the party may be waived by consent, but where the court has no jurisdiction of the subject matter, the consent of the parties can not give jurisdiction to it. Fidler v. Hall, 2 Met. 461; Barton v. Barton, 80 Ky. 212; Hughes v. Hardesty, 13 Bush 364; Baker v. L. & N. R. R. Co., 4 Bush 619.
In the case at bar the jurisdiction which the Pike county court did not have was that over the subject matter of the action, and hence, the failure of the appellee to demur to the warrant until after having entered his appearance and sought a continuance of the case was not a waiver of his right to object to the jurisdiction of the court of the subject matter of the action.
The judgment is therefore affirmed.