*375On Petition for a Rehearing.
McCabe, C. J.Appellant asks for a rehearing, because, as is claimed, we failed to decide whether the Legislature had power to limit the number of jurors in a civil case before a justice of the peace to six, and failed to say, in our opinion, whether or not a trial had over a party’s objection and exception with a jury of twelve instead of six, as provided by statute, was void, and whether a verdict for damages in favor of a defendant in replevin was void. We expressly held that a trial before a justice of the peace in a civil case with a jury of twelve , instead of six, was an irregularity, and, therefore, an error; that, plainly implied, we were of opinion that the act referred to, providing for such a trial by a jury of six, was a valid enactment.
It is not easy to understand what counsel mean in the last two points, whether a trial had over a party’s objection and exception with a jury of twelve, instead of six, is void or not. This being an attempt to enjoin the judgment for that cause, the question presented was whether the judgment was void or not, and not whether any of the proceedings leading up to the judgment were irregular or void. So long as the irregularity did not deprive the court of jurisdiction over the subject or the parties, its judgment, though the proceedings leading up to it, and the judgment itself, were erroneous, nevertheless, if jurisdiction remained, it would not be void. It does the appellant no good, in this case, to show that it objected to a trial by twelve jurors, instead of six, and took his exceptions. An exception before a justice of the peace is of no avail, because, on appeal, the whole case is tried de novo, and final judgment rendered in the appellate court, without any regard to any error committed upon the trial before the justice.
But if prejudicial errors in the proceedings leading up *376to the judgment, or in the judgment itself, before a justice of the peace, have been committed, which do not affect the jurisdiction over the subject or parties, the only-remedy is by appeal to a higher court, where the case can be tried de novo, and where, on such trial, such errors can be avoided.
Piled Nov. 2, 1893.If a party against whom such errors may have been committed sees fit not to so appeal from the justice’s judgment, he must be deemed to have waived all such errors. And if, instead of so appealing, he seeks to enjoin the judgment, he stands in no better attitude than if he had consented to each and every one of the irregularities complained of.
The statute providing for a jury of six also provides that, by consent, a jury may be composed of less than six. We know of no reason why the parties might not agree to a jury of more than six.
But even if this is not true, and, notwithstanding such agreement, the jury would not be a legal jury, it would amount only to an error in the proceedings, not affecting the jurisdiction. The same is true as to the supposed error or invalidity of the verdict assessing damages in favor of the defendant in replevin. Whether such a verdict is erroneous or not, or even void, is not material to inquire, and we did not before, and do not now, decide whether such a verdict is proper or not, because it does not affect the question of jurisdiction, and therefore is not before us.
If the justice’s court had jurisdiction of the subject of the action and the parties, and we so held in our opinion and now hold that it had, the intervening errors did not make the 'judgment void, and, unless the judgment was void, the suit to enjoin it can not be maintained.
Petition overruled.