Wilkerson v. Jenkins

77 Miss. 603 | Miss. | 1900

Terral, T.,

delivered the opinion of the court.

The plaintiff below, the intestate of the appellee, sued the appellant in the circuit court of the first district of Coahoma county in an action of trespass quare clausum fregii of lands lying in said first district. Afterwards, by consent of the parties, the cause' was removed for trial to the second circuit court district of said county, where the plaintiff below had judgment. The defendant below appeals, and assigns the removal of said cause from the first to the second district as error.

*606The action here is a local action, and by § 650, annotated code, the jurisdiction for the trial of the case is in the circuit court of the said first district, where the lands lie. The removal of the cause by consent from the circuit court .of the first to that of the second district did not give the latter court jurisdiction. Consent cannot give jurisdiction of the subject-matter, for that is fixed by the statute-. Some expressions of the court in Wessenger v. Mausur, 15 Miss., would indicate that the court was of the opinion that a local action could be transferred from one county to another by consent, and Wilson v. Rodewald, 49 Miss., so far as it is in conflict with Wessenger v. Mausur, is stated 'to be overruled. Wessenger v. Mausur, however, was_ a transitory, not a local, action, and was properly decided; but what was said in that case as to local actions, and as to Wilson v. Rodewald, 49 Miss., is a mere obiter dictum. The true rule of construction is that the opinion of the court is to be construed in the light of the facts of the case, and by this rule the expressions of the court in the Wessenger v. Mausur case, in reference to local actions, are obiter dicta.

The judgment herein is a nullity, and it is reversed, and the case is remanded to the circuit court of the first district of said county.

Reversed and remanded to ’first district court.

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