(dissenting).
The majority hold that the only circuit court having “jurisdiction” to entertain the application for the writ of prohibition to the Alabama State Bar is the Circuit Court of Montgomery County, that this lack of jurisdiction in the Madison Court is a matter of which this court must take notice ex mero motu, and that having taken such notice this court must hold the judgment against appellant to be void although the lack of jurisdiction is not assigned or argued as error.
As I understand the cases cited by the majority, none of them holds that Montgomery County is the only county having jurisdiction to issue extraordinary writs against appellant. In Ex parte Lewis, 236 Ala. 82, 181 So. 306, this court merely refused to entertain a. petition for mandamus and said “Application should have been made to the circuit court.”
In Lewis v. Gerald, 236 Ala. 91, 181 So. 306, this court observed that this court has held that the circuit court has power and authority to issue mandamus to appellant and will not entertain an original petition for mandamus. This court then proceeded to review on the merits a judgment of the Circuit Court of Jefferson County denying a petition for mandamus against appellant.
The majority say:
“. . . . In Alabama Textile Products Corp., this Court held that where a board or commission of state-wide jurisdiction has its principal place of business in Montgomery, the Circuit Court of Montgomery County is the only court which would have authority to issue a supervisory writ.”
I must differ with the conclusion of the majority as there stated. In Alabama Tex*734tile Products Carp., the petitioners had presented an original petition for certiorari to the Supreme Court seeking review of a decision of the Board of Appeals, Division of Unemployment Compensation, Department of Industrial Relations. There was no question as to whether the circuit court of any county had jurisdiction to entertain such a petition. No application for certiorari had been made to the circuit court of any county. The question before this court was whether this court should issue the writ although no application had been made to any circuit court.
Textile Products cannot be authority for holding Montgomery County to be the only court with jurisdiction to issue the writ, because in that case this question was not presented in any circuit court or in this court.
In Aderholt, 283 Ala. 436, 218 So.2d 149, this court affirmed a judgment of the circuit court granting prohibition against appellant. In Moore, 282 Ala. 562, 213 So.2d 404, also, the judgment granting prohibition -was affirmed.
On reading the opinion of the majority, it seems to me that the “venue” of the suit for prohibition against appellant did not properly lie in Madison County. I am inclined to agree that on proper objection, the suit should not have been entertained in Madison County, but should have been transferred to Montgomery County Circuit Court. 1958 Recompiled Code of 1940; Pocket Parts, Title 7, §§ 64(1), 64(2).
“. . . Generally jurisdiction and venue are separate and distinct. Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So.2d 665. . .” Associated Grocers of Alabama v. Graves Co., 272 Ala. 158, 160, 130 So.2d 17, 19.
“The problems presented call for a proper understanding of the oft-confused and loosely-used terms ‘jurisdiction’ and ‘venue.’ The term ‘jurisdiction’ is used in several senses, but in its general and ordinary use, it means the power lawfully conferred on a court to entertain a suit or proceeding, consider the merits, and render a binding decision thereon. ‘Venue’ refers to the particular county or other subdivision in which, for the sake of convenience or other commanding policy considerations, the cause is to be heard or tried. Industrial Addition Ass’n v. Commissioner, 1944, 323 U.S. 310, 65 S.Ct. 289, 89 L.Ed. 260; 14 Am. Jur., Courts, § 160; 56 Am.Jur., Venue, § 2.” Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 667, 75 So. 2d 665, 667.
“A plea to the venue may be waived. A plea to the ‘jurisdiction’ should be filed before a general appearance or there is a tacit admission that the court has a right to judge. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 597, 165 So.2d 375.” Ex parte Dothan-Houston County Airport Auth., 282 Ala. 316, 321, 211 So.2d 451, 455.
“The terms ‘jurisdiction’ and ‘venue’ are often confused and loosely used. In its pure sense ‘jurisdiction’ means the power of a court to entertain and consider a cause, and render a binding judgment therein. ‘Venue’ refers to the court in which for the sake of convenience or policy considerations the cause is to be tried. Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So.2d 665.” Ex parte Western Railway of Alabama, 283 Ala. 6, 10, 214 So. 2d 284, 287.
See also: McKinney v. Low, 1 Porter 129; Thompson v. Union Springs Guano Co., 202 Ala. 327, 80 So. 409; Brown v. Alabama Chemical Co., 207 Ala. 215, 92 So. 260; McCord v. Harrison & Stringer, 207 Ala. 480, 93 So. 428; Hallmark v. Va. Bridge Co., 241 Ala. 283, 2 So.2d 447; Jones v. Phenix-Girard Bank, 255 Ala. 51, 50 So.2d 1; Ex parte Moss, 278 Ala. 628, 179 So.2d 753.
It thus seems to me that the difference between jurisdiction and venue would require recognition here.
*735I am of opinion that the majority have not, in the instant case, recognized the difference between jurisdiction and venue. In the instant case, I submit that the Circuit Court of Madison County does have “jurisdiction” of the subject matter and the parties, but, the venue of the suit does not lie in Madison County.
On proper objection to the venue, the Madison County Court should have sustained objection to the venue and transferred the case to the Montgomery County Circuit Court.
As I understand the record, the Commissioners of the State Bar did make objection to the venue, but the trial court overruled the objection. Appellant, however, did not assign such ruling for error or argue such assignment in brief. In these circumstances, the error has been waived.
Lack of jurisdiction cannot be supplied by waiver, but objection to venue can be waived. By failure to raise the point on appeal, appellant has waived the objection to venue.
HEFLIN, C. J., concurs.