dissenting. There is no contention but that the county court, in which this case was originally brought, had jurisdiction of the subject-matter of this suit, as well as of the person of the defendant. He appeared in court and confessed judgment.. I concede that a judgment rendered by the judge in vacation, reinstating the case that had been dismissed in term time, was void for want of jurisdiction in the judge to pass such an order. But, granting that the order reinstating the case was a nullity, its only effect was to leave matters where they were before it rvas signed. The parties at the next term of court, instead of taking any notice of the order dismissing the ease, proceeded on the pleadings originally filed, and the defendant confessed judgment and appealed from that judgment to the superior court; and the court acquiesced in this, — allowed them to proceed as they had agreed to do, by ignoring the order of dismissal passed by him at a former term of the court, and permitted the defendant to confess judgment in the county court and to appeal the case to the superior court from that *326confession .of judgment. The appeal was twice tried in the superior court; at each trial a verdict was rendered, one in favor of the defendant and one in favor of the plaintiff, and a new trial was granted in each instance. When the case came on for a third trial in the superior court the defendant’s counsel made a motion to dismiss the suit, and at the time he made the motion he admitted in open court that the order of the judge of the county court, reinstating the case, was drawn jointly by himself and the attorney for the plaintiff, and was passed by his consent, that he was present when the judgment was finally taken in the county court, and that lie confessed judgment for the plaintiff. At the time he made the motion to dismiss he insisted that the order signed by the judge in vacation was void, and that for that reason the county court was without jurisdiction to try the case, and the superior court, on appeal, was without jurisdiction to try it; and that the case should be dismissed for that reason. The court sustained the motion and dismissed the case.
That consent alone can not confer jurisdiction I agree; but where, as in this case, not only the court in which the case was originally instituted, but the court to which it was appealed, had jurisdiction of the subject-matter, as well as of the person of the defendant, then the defendant may waive any personal privilege that he has, such as the privilege of objecting to irregularity of procedure in the trial; and if he does so, the judgment rendered will bind him. In the case of Bostwick v. Perkins, 4 Ga. 47, it was held: ' “Where a court has jurisdiction of the person and the subject-matter of the suit, and the defendant has some privilege exempting him from the jurisdiction, he may waive the privilege if he chooses to do so; as where a party Avas sued in a court of law, for a subject-matter more properly cognizable in a court of equity, and the defendant acquiesced in the jurisdiction of the court, and confessed judgment to the plaintiffs; the court refused to set aside the judgment on that ground, after the lapse of more than five years.” It was held in Central Bank v. Gibson, 11 Ga. 453 (5) : “When the court has jurisdiction of the person and subject-matter, and the defendant has some privilege which exempts him from the jurisdiction, he may waive the privilege, and in so doing will be bound by the judgment.” There is a wide difference between mero *327irregularity of procedure before a court of competent jurisdiction and entire absence of jurisdiction.
Can it be contended that if this controversy in the court below had resulted in favor of the defendant, and a final verdict had been rendered in his favor after the case was litigated through two or three different terms of court, he could not have pleaded res adjudicata against any subsequent suit that the plaintiff may have brought upon the same cause of action? Would not the plaintiff have been estopped from denying that it was a final proper adjudication of the controversy between them? And, as estoppels are mutual, should not the defendant now be estopped on account of his conduct from raising the question as to want of jurisdiction? The rule that parties by consent can not vest tire court with jurisdiction or power not authorized by law and conferred upon it by the constitution is to be considered with this qualification: where jurisdiction has attached, as it did in this case originally in the county court, and the cause of action or subject-matter is legally and properly within the power and cognizance of the court, the court may proceed upon consent or stipulation with reference to the matters before it. The rule thus qualified applies where the court has jurisdiction of the case in controversy. Again, the principle as to consent has been held to be applicable only to the question of general jurisdiction to adjudicate as to the subject-matter, and not to the question as to whether the particular facts of the case bring it within that conceded jurisdiction. The rule that jurisdiction can not be conferred by consent does not cover cases where the agreement of the parties is in effect only waiving the ordinary process with which the power of the court is invoked, especially so where the court has general jurisdiction over the subject-matter, and has proceeded to final judgment without objection. So parties who consent that an order of court be made have been held to be obligated thereby even though the court had no power to make such an order-. See 11 Cyc. 675-676. In Groves v. Richmond, 56 Iowa, 69 (8 N. W. 752), it was held: “The. rule that jurisdiction can not be conferred by consent applies only where the court has not the right to assume general jurisdiction of the subject-matter of an action; where the court has such general jurisdiction the parties may waive the ordinary process by which it is invoked.” That announcement was in a case where the district court granted *328a writ of certiorari in a matter in which the circuit court had exclusive jurisdiction. It was held that an agreement of attorneys for the parties, that the action should be transferred to the circuit court and should stand as though originally commenced there, conferred upon that court jurisdiction to proceed and determine the questions involved in the action.
The defendant and his counsel in this case having appeared before the county court and confessed judgment, and appealed this judgment to the superior court after an order of dismissal at a prior term of the court had been taken for want of prosecution, and having litigated with the opposite party through several terms of the superior court and in two trials, in one of which the defendant prevailed and in the other the plaintiff,' the verdict in each being set aside on motion for a new trial, it was too late for the defendant, when the third trial was about to be commenced, to move to dismiss the case for want of jurisdiction in the court, when the only reason assigned in that motion was the irregularity of the order reinstating the case, passed in vacation.' By his conduct he had waived this irregularity. Where the party knows of an irregularity of this kind, it is the fixed rule, observed in all the courts of this country, that he should come in at the first instance to avail himself of it, and not allow the other party to proceed and incur expense. It is not reasonable afterwards to allow the party to complain of an irregularity, when if he availed himself of it in the first instance, all that expense would have been rendered unnecessary; and. if a part, after such an irregularity has taken place, consents to a proceeding which, by availing himself of the irregularity, he might have prevented, he waives all exceptions to the irregularity. • This doctrine is long established, and well known, and extends so far that a person may be estopped, even in a Criminal proceeding against him, from pleading an irregularity that he had notice of, where by his silence he has waived objection. The acquiescence of a party who might take objection to an error obviates its effect. Consensus tollit errorem.
For these reasons f am of the opinion that the court committed error in dismissing the case, and must, therefore, dissent from the views expressed by a majority of the court. .