(dissenting). Statutes providing a proceeding for ascertaining the paternity of bastard children and compelling the father to support such children have been in force in this state since the creation of the state, and are collected, revised, and brought forward in ch. 64, Stats. (1898). Whatever steps of procedure therein are not explicitly covered by the statutes have been built up by the courts in the decision of particular cases, and in this way the proceeding has been judicially defined as not a criminal but a gwsvcriminal prosecution. Baker v. State, 65 Wis. 50, 26 N. W. 167; State v. Mushied, 12 Wis. 561.
The instant case comes before this court by writ of error to the circuit court for Winnebago county, in which court the case was tried on its merits and defendant found guilty *563and convicted. The action was commenced in the municipal court of the city of Oshkosh and county of Winnebago on November 1, 1905, by the issue of a warrant April 11, 1906, the defendant was in court and duly arraigned. He obtained a short adjournment, and on April 20, 1906, the case was called, testimony was taken on the part of the complainant, the defendant offered no evidence, and the accused was bound over by that court to the same court for trial as required by statute. Oh. 24, Laws of 1895. The trial was called on May 10, 1906, the defendant was arraigned and pleaded not guilty, and the remainder of the record before us is as follows:
“Defendant filed an affidavit for change of venue to circuit court, Winnebago county, Wisconsin. • Defendant filed written motion for change of venue to circuit court, Winnebago county, Wisconsin. Motion granted. Order for change of venue filed upon the affidavit of defendant, and upon motion of his attorney and upon all the records and files the court thereupon ordered that the venue of the cause be changed to the circuit court for Winnebago county, Wisconsin.”
A copy of the affidavit annexed to the return from the municipal court to the circuit court states that the affidavit is made for the purpose of moving the court for an order changing the venue in said action to the circuit court for Winnebago county. Copy of the written motion referred to expressly requests a change of the venue to the circuit court for Winnebago county, and the order ’of the municipal judge is made on this affidavit and on this written motion. The case was then tried on its merits in the circuit court, to which it was thus removed by the accused, without motion to remand or other objection, and after verdict against him the accused brought this writ of error to the supreme court, averring that the circuit court for Winnebago -county had no jurisdiction to entertain the cause which he himself brought there in the manner aforesaid.
The constitution of this state gives to the circuit courts of *564ibis state “original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law.” Sec. 8, art. VII. The jurisdiction of the circuit court over bastardy cases is neither excepted in the constitution nor prohibited by law. I can find nothing in ch. 24, Laws of 1895, which prohibits the exercise of this jurisdiction by the circuit court. The most that can fairly be said of this statute is that it prohibits the exercise in such cases by justices of the peace or court commissioners of the ordinary power to bind over for trial, and vests this kind of jurisdiction in the judge of the municipal court. It then requires this judge to certify and return — that is, to bind over for trial — the person accused of bastardy either to his own court or to another designated municipal court of the same county. There is nothing in the act stating expressly or by implication that this jurisdiction to hear and determine a bastardy case is exclusive or that the jurisdiction of the circuit court is taken away. There is merely no provision for binding over the accused to the circuit court, and another court designated to which the case shall be certified and returned. It has been held that the jurisdiction of circuit courts is not affected by a statute which confers jurisdiction upon other courts by requiring the accused to be bound over for trial to another court and contains no other language prohibiting the circuit court from trying the cause. See State, v. Grunke, 88 Wis. 159, 59 N. W. 452, referring to sec. 2420, Stats. (1898); Allen v. State, 5 Wis. 329.
The act in question provides that the municipal court may exercise power and jurisdiction equal 'and concurrent with the circuit court for Winnebago county in all cases of crimes and misdemeanors arising in said county except murder, and except where the person accused shall demand in writing to be tried in the circuit court. It also vests in the municipal court all the powers and jurisdiction of justices of the peace in criminal actions and proceedings and in civil actions and *565proceedings. I cannot think that a mere provision of statute that a person accused of bastardy shall be bound over to a municipal court prohibits the .circuit court from exercising jurisdiction or takes away its jurisdiction of that subject matter. The situation here presented is that of one expressly and voluntarily removing his cause for trial into a court of general jurisdiction, but removing it into that court by a procedure not authorized by statute, then trying it on its merits in the court in which he has so removed it, and afterward objecting that that court has not jurisdiction. I think this should not be permitted, and I regret that a rule ■of procedure contrary to ethics, and as I believe contrary to law, should receive the sanction of this court. No legislative body would establish such a rule. The immorality of the rule would there be sufficient to defeat it. Courts are led to sanction such unjust rules by imagining themselves bound and controlled by a sort of verbal logic derived from former sayings of that court. This self-inflicted spell would be amusing were its consequences not -so serious.
It is true that consent cannot confer jurisdiction of the subject matter. But this is not such a case. The circuit court for 'Winnebago county had jurisdiction of the subject matter. It could at least hear and determine bastardy cases which might have been brought to it by change of venue from another circuit court of this state. It had jurisdiction over the subject. It had the power to hear and determine any bastardy case, provided it was properly brought before the court. The defect here complained of was one of procedure, in that the judge of the municipal court, upon the affidavit and request of the accused, transmitted the cause for trial to the circuit court for Winnebago county, when he perhaps should have either refused to transmit the case at all or transmitted it to the municipal court of Neenah and Menasha in the same county. The case was therefore brought to the circuit court and tried there by- consent of and at the request *566of the accused. This should conclude Mm from attacking tbe judgment of that court for want of jurisdiction.
There is a rule which commends itself to me as sound, which was applied by Judge Bbeweb in Shuster v. Finan, 19 Kan. 114, to the effect that, where one brings in an unauthorized manner a cause before a court of general jurisdiction, this is a consent which waives all objection. Or, to quote the words of Elliott, C. J., in Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531: “Jurisdiction of a particular instance falling within the scope of the general subject may be given by consent, either express or implied.” Other instances could no doubt be found.