1722.

#### BALDWIN *v.*RAGAN, survivor, *et al.*

Under the act of 1899 (Acts of 1899, p. 48), judges of the city courts are authorized and empowered to preside in the courts of one another interchangeably, and, while so presiding, to try all cases there pending which the judge of the court is disqualified or providentially prevented from trying. Other cases the judge so presiding may, by consent of the parties, try and determine, and the judgment rendered therein will be binding, and neither of the consenting parties will thereafter be heard to question liis right to render the judgment; and especially would a party in such case be estopped from denying the authority of the presiding judge to render judgment therein, after he had recognized the validity of the judgment by filing a motion for a new trial on other grounds.

Eule, from city court of Dawson — Judge Edwards. January 22, *1909.*

Argued April 13, —

Decided July 31, 1909.

*W. II. Gurr, R. R. Marlin,*for plaintiff.

*M. J. Yeomans, II. A. Wilkinson,*for defendant.

Hill, C. J.

The questions in this case arise on the hearing of a rule against the sheriff by claimants of a fund in his hands realized from the sale of personal property. The rule was brought in the city court of Dawson by Baldwin, who claimed the fund under a distress warrant for rent. The sheriff, in his answer, admitted having the fund, and alleged that, in addition to the claim made by Baldwin, it was claimed under a mortgage foreclosure, by Nasworthy *&*Company, who were made parties to the rule. The claimants submitted their case to *Judge*Park of the city court of Sylvester (without a jury), who was then presiding in the city court of *530Dawson for Judge Edwards, judge of the latter court. Judge Edwards was not disqualified, nor was he providentially prevented from trying the case; and these facts were known to the claimants when they submitted the questions raised by the rule to the decision of Judge Park. Judge Park found that Baldwin was entitled to the fund; and Nasworthy & Company thereupon filed a motion for a new trial, which was dismissed by Judge Park on the ground that there was no brief of the evidence filed as provided by.his order. After -the judgment dismissing their motion for a new trial had been entered, Nasworthy & Company filed a petition before Judge Edwards of the city court of Dawson, to set aside the judgment rendered by Judge Park on the hearing of the rule, on the ground that Judge Park was without jurisdiction to hear and determine the case, as Judge Edwards was not disqualified in the case or providentially prevented from trying it. Judge Edwards, on hearing the petition, passed an order setting aside and vacating the judgment of Judge Park rendered on the hearing of the rule, and thereupon heard the rule against the sheriff and decided the case in favor of Nasworthy & Company; and the writ of error to this court, brought by Baldwin, challenges the correctness of the judgment setting aside the judgment rendered by Judge Park, and also the correctness of the decision made by Judge Edwards in awarding the fund to Nasworthy & Company.

We think Judge Edwards committed an error in vacating and setting aside the judgment rendered by Judge Park in the rule case, which had been submitted to him by both claimants while presiding in the city court of Dawson. The act of 1899 (Acts 1899, p. 48) provides as follows: “From and after the passage of this act, the judges of the various city courts of this State shall be,’ and are, hereby authorized and empowered to preside in any of the city courts now established or hereafter established by the General Assembly of Georgia, in the same manner as the superior court judges of this State preside in the courts of one another, and any city court judge may exercise all the powers, duties, and functions devolved upon the judge of such city court over which he may be called to preside by the judge of any such city court (in such cases where the judge of said city court is disqualified, or is providentially prevented from trying).” Now, the judges of the superior courts of this State are authorized to preside in the courts of one another and *531perform all the functions of the judge of such superior court when so presiding. The act above quoted seems, in the first part of the act, to give the same right to judges of the city courts of this State, but in the latter part of the act it limits the right of the judge of the outside city court to perform any functions of the judge of the city court in which he may be presiding, except where the judge of the latter court is disqualified or is providentially prevented from trying the case. Construing the entire act, we think that under it the judges of the city courts of this State may exchange courts, and preside for one another, and that they have the right to try all cases in the court in which they are called upon to preside which the judge of the court is disqualified or providentially prevented from trying, and may also, while so presiding, hear such eases as may be submitted to them by consent of the parties, although the judge of the court is not disqualified or providentially prevented from trying- them. Of course, parties can not by. consent give jurisdiction to a court which has none. Civil Code, §5079. In this case the court had jurisdiction of the parties and the subject-matter, and Judge Park had jurisdiction to preside in the court, although he was disqualified to preside in the particular ease, but disqualification is a matter that can be waived by the parties. The record shows that both parties ‘Submitted the questions raised by the rule to Judge Park while he was presiding in the city court of Dawson, without the intervention of a jury, and the losing party filed a motion for a new trial, thus recognizing the jurisdiction of Judge Park to render the judgment complained of, and excepting to the judgment on various grounds which are set out in the record, none of which question the qualification of Judge Park to render such judgment. This motion having been dismissed by .Judge Park, the movant thereupon filed his petition to vacate and set aside the judgment of Judge Park in the case which he had consented for him to hear and determine, and the validity of which judgment he had recognized by his motion for a new trial. *We*believe that he was then estopped from denying the authority of Judge Park to render the judgment, and that Judge Edwards should not have entertained his petition for that purpose, and at his instance set aside and vacated the judgment. *Vaughn*v. Strickland, 108 *Ga.*659 (34 S. E. 192). This view renders unnecessary any consideration by us of the errors assigned to the judgment of Judge Edwards on the merits of the'controversy as to the *532respective rights of the claimants arising on the rule against the sheriff. The judgment rendered by Judge Park, for the reasons stated, must be considered as final. *Judgment reversed.*