(dissenting). The question is not whether the suit should have been brought in Warren county, but whether, after they have appeared and pleaded to the merits in Fountain, obtained a change of the venue to Montgomery, found issues, gone to trial, and been defeated before a jury, the defendants can, for the first time, by motion in arrest, object that the suit should not have been brought in Fountain nor tried in Montgomery? If the law authorizes a party thus to trifle with the courts of general jurisdiction, to submit his cause to their adjudication, occupy their time and attention in hearing it, and then, when beaten upon the merits, to set up that all that has been done is a farce, it is certainly time that the law should be changed.
In The Indianapolis and Madison R. R. Co. v. Solomon, 23 Ind. 534, we expressly held that such was not the law, and this upon such deliberation as courts of last resort are apt *317to bestow upon a question before they venture to overrule previous decisions of the same tribunal;'as we did with unanimity in that case. It will not do now to base a j udgment, in direct opposition to that case, upon the ground that the question is closed by a- long line of uniform decisions and legislative acquiescence therein. Legislative acquiescence for a period of six years has followed that case and given it what-, ever of sanction may be derived from the fact. Vail v. Jones, 31 Ind. 467, was put upon a ground by the majority of the court which rendered it unnecessary to consider the question now involved, and, on that account, it was not discussed or decided by the majority in that case, and therefore it cannot, as I think, be regarded as an authority upon the question.
If the Solomon case is bad law, it should be overruled, I grant. The question is one of practice, and with such questions greater liberties may be taken than with rules of property, upon the faith of which men make contracts or acquire titles. A rule of practice established in error, if found to embarrass the administration of justice, may, with little inconvenience, be corrected. It is very certain that the rule of the Solomon case would work well and never could be used as a trap to defeat just judgments, or in any way hinder the correct administration of the law. If the principle of that case is to be disapproved now, it must be, I think, not because it is mischievous but because it is in conflict with the statute.
By our law, suits for divorce are required to be brought in the circuit court of the county in which the petitioner is a a bona fide resident. This requirement is quite as imperative as the 28th section of the code is that any other suit must be brought in the county in which the subject of the action is situated. And' an action in personam, to recover damages, is, in its nature, quite as transitory as a suit for .divorce, and can be quite as well tried in another county than that in which the statute requires it to be instituted. And yet in Lewis v. Lewis, 9 Ind. 105, a divorce case, it was held that, after answer, when’ the complaint was silent, it was too late to object that the suit was brought in the wrong county, *318the fact appearing by the proof. A suit for divorce concerns. the status of the plaintiff, and the decree operates upon that statiis. This decree was affirmed though the suit was brought and tried in a wrong county. If the 28th section of the code means that jurisdiction of the subject of the action is exclusive in the courts of the county where the suit is directed to be brought, then a divorce case is within the same rule. There can be no good reason for placing such a construction upon one statute and not upon the other. The same remark may, with emphasis, be made of the statute giving an action for killing cattle upon railroads not fenced, to be brought in the county where the damage was done. This latter statute is penal, and therefore subject to strict construction.
Before the code, nothing was better settled than that, in civil cases, advantage could not, after verdict, be taken of the fact that a personal action was brought and tried in a wrong county. Mayor of London v. Cole, 7 T. R. 579. The English statute of jeofails, 16 and 17 Car. 2, chap. 8, was express that the judgment should not for that cause be arrested or reversed, and we had re-enacted substantially the same statute. R. S. 1843, p. 714. Dumont v. Lockwood, 7 Blackf. 576. See, also, 1 Smith Lead. Cas. 793, the learned note to Mostyn v. Fabrigas. It has been supposed that secs. 101 and 580 of the code go far beyond the former statute of jeofails in covering, after a fair trial, errors and defects in legal proceedings, not affecting substantial rights. 1 Van Santvoord Pl. 834. Certainly, the general tenor of our decisions is to that effect. There was formerly, in England, as well as here, in the very nature of things, a substantial and a formal distinction as to the locality of trials, which may yet exist. Where the proceeding is in rent, it may sometimes be that the judgment will have no effect if rendered in a wrong county. This was so in England, in ejectment, because the sheriff of the county where the cause was tried was to deliver possession, and this he could not lawfully do outside of his bailiwick. See Dequindre v. Williams, 31 Ind. 444. So when the question was, in any case, one of title merely, there *319was a solid distinction of locality. The New Albany, etc., R. R. Co. v. Huff, was a case of this kind. But in cases like this, for damages merely, the matter was deemed, as long ago as Lord Mansfield’s time, one of mére form. This distinction, undeniable in its very nature, was plainly stated by that great judge in the leading case of Mostyn v. Fabrigas, Cowp. 176, and has never been questioned. . See also Chit. Pl. 266. It is a mistake to suppose that this distinction was ever ques- ■ tioned in Doulson v. Matthews, 4 T. R. 503, or by Chief Justice Marshall, as will be seen upon examination.
In suits like this, the rule' of the common law, that the venue must be laid in the right county, was quite as imperative as our statute is, that the suit must be commenced in the right county, and I suppose for the same reason, that is to say, that the jury to try the cause may come from that county. There can be no other reason. And since it has come to be believed that a jury having no previous knowledge of the matter in controversy, and which must, therefore, rely wholly upon the evidence, is quite as safe as any other jury, and indeed in all respects to be preferred, the fact that the place of trial is .merely a formal and technical requirement, in its essential nature, must be very apparent indeed. It was so regarded by Marshall, J., in Livingston v. Jefferson, 1 Brock. 203. Itis not to be supposed, without finding a very clear expression of such a purpose, that the legislature intended that a party who had voluntarily, and without objection, submitted his cause to such a jury, might, after a verdict against him, avail himself, for the first time, of this formal requirement. If sections 101 and 580 of the code do not preclude the possibility of such a result in this case where these appellants, in applying for a change of venue from Fountain for the purpose of preventing the cause from being sent to Warren, state under oath that they could not have a fair trial in Warren, because of local prejudice against them, existing there, then I do not comprehend the purpose or meaning of these enactments.
In my judgment the twenty-eighth section of the code *320was not intended at all.either to define or limit the general jurisdiction of our courts. The code itself was meant, not to declare what should be the] jurisdiction of courts over subjects, but how proceedings should be conducted in them. Its title, as well as its body, shows this. Other acts declare the nature of their jurisdiction and define it. The twenty-eighth and five other sections of the code compose article 3, and this article is entitled, “actions—where commenced.” The ordinary import of this language relates to place or venue,- and not to jurisdiction; and so of the language of this particular section, and, indeed, of the whole article. It simply requires that the several classes of actions named shall be brought in the counties to which it refers, without a word to indicate that jurisdiction of the subjects' respectively is exclusive in the courts of such counties. Nor can this be inferred from the language employed. It makes all actions local, so that no argument whatever can be based upon the former distinction between those local and those transitory. This section of the code is taken, with but a slight alteration, from the New York code, section 123, the change being that the action shall be “commenced,” instead of “tried,” in the county indicated. The court of appeals of that state, in considering the purport of it, use this language: “The object of the section is to determine the venue in the classes of actions to which it refers, and it does not profess to limit or define the jurisdiction of the court.” Newton v. Bronson, 13 N. Y. 587.
The power to hear and determine a cause is jurisdiction in a legal sense, and it is to my mind very clear that this power, as to a given cause, may be conferred by law upon any circuit court in the State; and yet, at the same time, without inconsistency, it may be required that suits shall be brought only in the county where the subject of the action is situate, or where the cause of action arose, or where the defendant resides; and that the effect of this requirement Is, not to deny jurisdiction of the subject to the court of any • county, but merely to fix the proper venue. *321If this is not so, then jurisdiction and venue are not distinguishable; or rather, to determine the proper venue of the cause by law, means that no court elsewhere has power to hear and determine that cause. Elementary principles would inevitably lead a step further. The court which has no jurisdiction of the subject of the action cannot, it is universally held, render a valid judgment, even by the consent of all the parties, for consent cannot confer jurisdiction of a matter, where the law has denied it.
Jurisdiction of the parties and of the subject must coexist, in order to enable any court 'to render a judgment which is not utterly void. The parties may voluntarily submit themselves to a jurisdiction—appearance and a failure to question the right of the court ’ to bind them waives the objection as to the parties—but as to the subject, it is never toolate, even after judgment, to urge it. I understand the fifty-fourth section of the code merely to be in harmony with'this doctrine. In that sense, it is wise in its provision that, the objection that the court has no jurisdiction of the subject shall not be waived by a failure to- make it by demurrer or answer. Before that section was amended, in 1855, the objection, that no case was made by the complaint, was waived, unless it was raised by demurrer, for, of course, it could not be by answer, but would always appear, like the want of jurisdiction of the subject, upon the face of the complaint, and it would be senseless to attempt to show it by answer. It is beyond my power of belief that it was ever intended that a failure to object should cure a complaint which failed to show any cause of action, and yet not waive the objection that a meritorious suit was brought in a wrong county. I can readily see, however, that facts not averred, which would make a good case, might be proved upon a trial, and that legislation pre-eminently intended to make traps and pitfalls of no avail in the conduct of a cause, could, assurpe, after verdict, that a good case must have been proved,, else the plaintiff would not have succeeded.
*322It will be seen, upon close examination, that the present question has not, in a single one of the cases relied on by my brethren, been decided. The N. A. & S. R. R. Co. v. Huff, is the only one of them in which the objection was held good after a verdict otherwise recognized as valid, and I have already distinguished that case from the present, as one in its nature in rent, operating upon the title to real .estate. Ring v. McCoun, 3 Sandf. 524, was held to be •of the same character. Gardner v. Ogden, 22 N. Y. 327, was a case where the decree sought would operate directly on the person of the defendant, compelling him to act, and therefore unlike the Huff case, where by its own force the decree would operate upon the title.
It is by inference only, as it seems to me, that the cases referred to, with perhaps a single exception, can be made to ¡support the motion in arrest. This inference is deduced ■from language employed by the judges, where, I think, words were not well chosen, or not used with exactly legal accuracy, as they would have been if the very question had been in hand. There is a well recognized distinction between jurisdiction over the subject of the action and jurisdiction over the particular cause. The latter may not exist, though the former does, in a given instance. In short, as has been already intimated, the law may require the particular cause to be commenced in a certain county or court, not because the courts elsewhere have no jurisdiction of the subject, but because the legislature is of opinion that it will be more convenient or less expensive to try it in the county or court chosen. Prigg v. Adams, 2 Salk. 674, is a case where the decision rested upon this distinction. There the judgment (for five shillings) of a court having general jurisdiction of the subject was held valid, the cause arising in Bristol, though the statute required all such causes arising in Bristol under forty shillings to be brought in an inferior court, declaring that the judgment of any other court should be void. The judgment was erroneous, of course, .but.it would have been void if the effect of the statute had *323been to deprive the superior court of its general jurisdiction of the subject. This distinction has never been questioned to my knowledge, 1 Smith Lead. Cas. 821. The words, “jurisdiction of the subject,” are frequently found in the books, and are used in this general sense, meaning the general power of the court. I cannot bring myself to believe that the legislature, in adopting the 'same phrase, intended to express a different idea. Thus interpreted, the fifty-fourth section of the code is in harmony with the liberal and enlightened purpose of that act; otherwise, it is a return to the intense technicality of two centuries ago, abandoned in England, and condemned as mischievous everywhere else.
Marshall M. Milford, J. Poole, J.. McCabe, % M. Butler, Monroe M. Milford, R. C. Gregory, f. H. Brown, f. E. McDonald, and E. M. McDonald, for appellants. Ti F. Davidson, and J. Buchanan, for appellee.I admit that it would logically follow, from the views already expressed, that the objection could not be raised by demurrer, and that this is not in harmony with Parker v. McAllister, 14 Ind. 12. It results, however, in no inconvenience or embarrassment that a motion or answer shall be required, the former When the matter appears on the face of the complaint, the latter When it does not. At common law, a demurrer would reach it, for then any objection apparent by the declaration could t'hus-be raised, whereas now the statute authorizes only certain specified questions to be made in that way.
. 'The subject of the action may determine its proper venue without resulting in a denial of the general power of any court elsewhere to try the cause, if objections be not made, as 1 think has been already shown; and if this be true, it seems clearly to follow that no argument against the construction which I put upon the fifty-fourth section of the code can be founded upon a comparison of the language' of that section with that which is employed in the twenty-eighth section.*
Opinions filed January 2d, 1871; petition for a rehearing overruled February 2d, 1872.