I do not concur in the conclusion reached in the majority opinion that when the decree here appealed from was entered there was no complaint before the court on which it could act and that the court was without power to *Page 79 enter such decree. I concur in the holding that the Appellate Court had no jurisdiction to review the order and decree dismissing the complaint for the reason that a freehold was involved, and its judgment in that matter was a nullity. However, because of later proceedings in the circuit court, in which the defendants without objection participated, their right to object to the jurisdiction of the court to enter this decree was waived.
It may be conceded that the action of the Appellate Court was a nullity and that by lapse of time the circuit court had lost jurisdiction of the cause but, as shown by the opinion and the record, plaintiff, after the cause was redocketed in the circuit court, amended his complaint, and the defendants without objection urging lack of jurisdiction filed their answer thereto. A hearing was then had on the pleadings and the merits of the cause were decided.
The rule in this State is that when a court of general jurisdiction having jurisdiction of the subject matter of a particular suit loses jurisdiction of that case by operation or effect of law, and the parties, without objection calling attention to the lack of jurisdiction in the court, voluntarily appear, file pleadings and participate in a trial of the cause, they waive the lack of jurisdiction of the subject matter, and neither party can later complain that in thereafter entering a judgment or decree against him the court lacked jurisdiction so to do.
In Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, where plaintiff took a voluntary nonsuit and later secured a reinstatement of the cause and participated in the trial thereof, it was held that although the court by reason of such nonsuit was without jurisdiction to reinstate the cause, yet, after plaintiff secured such reinstatement and participated in a trial, he waived the right to later object to the jurisdiction of the court. InCentral Bond Co. v. Roeser, 323 Ill. 90, a judgment by default had been entered against the defendant and an execution issued. More than thirty *Page 80 days thereafter the court, on defendant's motion, set the judgment aside and both parties without objection participated in a trial which resulted in a verdict for the defendant. Plaintiff, after attempting to secure a new trial, sought to void all proceedings following the entry of the default judgment on the ground that the court had no jurisdiction to set that judgment aside. This court held that by participating in the trial of the cause plaintiff waived the right to object to the jurisdiction of the court. In Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, where a cause was dismissed and later reinstated, and the parties without objection appeared and participated in a trial, it was held that they could not thereafter object to lack of jurisdiction of the court to hear it. In Herrington v. McCollum,73 Ill. 476, where a cause which had been dismissed was reinstated, and the parties without objection participated in the proceedings following reinstatement, it was held that to later avail of the right to question the jurisdiction of the court, the parties so objecting should, when the case was reinstated, either not have appeared at all or limited their appearance to the objection against the jurisdiction of the court.
So in this case, when the decree dismissing the complaint was by a void judgment of the Appellate Court ordered set aside and the cause ordered to proceed, and defendants failed to object to the jurisdiction of the court to proceed further but answered the complaint, as amended, and participated in a trial on the merits thereof, they waived lack of jurisdiction of the subject matter. It is immaterial, under the cases above cited, that the trial court had no option but to redocket the cause on the void order of the Appellate Court. No such compulsion rested on the defendants by reason of that order to participate further in the proceeding. The judgment and order of the Appellate Court being a nullity were as though they had never *Page 81 existed, and the circuit court had lost jurisdiction by lapse of time. Had the defendants, as pointed out in the Herrington case just cited, not appeared at all or limited their appearance to objection against the jurisdiction of the court, their right to object here to such lack of jurisdiction would have been preserved and the conclusion here reached on this record would in such a case be right, but as they failed so to do, but participated without objection, as stated, they waived the right to object to such lack of jurisdiction.
In my opinion the trial court had jurisdiction to proceed to a hearing on the complaint and answer and to enter the decree appealed from. It follows that the case should be decided here on its merits.