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 CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NORTH DAKOTA PATRICK J. LYONS and THOMAS J. WOODMANSEE, as the firm of

LYONS & W0ODMANSEE, Plaintiffs and Appellants, v. DANIEL B. MILLER, Defendant and Respondent.

Want of Jurisdiction-Waiver by Appeal.

After an appeal upon questions of law and fact by a defendant from a judgment of a justice of the peace to the district court, where a demand for a new trial is embodied in the notice of appeal, the defendant cannot deny the jurisdiction of the district court over his person, although the justice of the peace rendering the judgment appealed from never acquired jurisdiction over his person. Whether such justice acquired such jurisdiction by litigating the cause on the merits after motion to dismiss for want of jurisdiction had been overruled, not decided.

(Opinion Filed January 15, 1891.)

APPEAL from district court, Kidder county; Hon. W. H. WINCHESTER, Judge.

W. F. Cochrane and Geo. W. Newton, for appellants; no appearance for respondent.

Action for goods sold and delivered; tried in justice court, where plaintiff recovered judgment. On appeal by defendant to district court action dismissed on ground of no jurisdiction over person of defendant. Reversed and district court ordered to try cause.

Cochrane and Newton, for the appellants, urged that the objection to the return endorsed on the summons as being