This is an action brought in the district court of Choctaw county by the board of county commissioners of that county, in the name of the county, pursuant to chapter 58, Wilson's Rev. Ann. St. 1903 (sections 3745, 3746, and 3747), charging defendant, plaintiff in error, with malfeasance in office as sheriff of that county. Pursuant to the petition and affidavits filed in support thereof, the judge of said court in chambers, on August 18, 1908, entered an order suspending defendant from office. Later there was an amended petition filed, and an order of court overruling a motion to set aside the order of suspension. After more amending of the petition, defendant demurred thereto, and, without the same being passed on, pleaded to the merits. After reply, and challenge to the panel filed by defendant and overruled, there was trial to a jury, and verdict finding defendant guilty as charged, and judgment rendered and entered removing him from office. After motion for a new trial filed and overruled, defendant brings the case here for review by petition in error and transcript of the record.
For the reason that the alleged errors set forth in the petition in error and relied on in the brief of plaintiff in error do not appear upon the face of the record, and the motion for a new trial and the ruling thereon are not preserved by bill of exceptions or case-made, nothing is presented to us by this proceeding for review. In so holding we are not unmindful of the contention of plaintiff in error that the court was without jurisdiction to try the cause, because the original petition, afterwards amended to cover the objection, disclosed that plaintiffs acted as individuals, and not as a board, in bringing the suit in the name of the county, and that their legal capacity to thus sue was raised by demurrer. *Page 533 But the question thus raised was not passed on, and was not jurisdictional, and, being waived by defendant filing his answer pending the demurrer, presents nothing for this court to review.
Finding no error in the record, the judgment of the trial court is affirmed.
All the Justices concur.