I. Upon the fact stated in the motion that the judgment in the circuit court was obtained fraudulently and in violation of the agreement, there is conflict of evidence.

The court found that no such agreement as defendant sets up was entered into, and this finding is abundantly sustained by the evidence submitted. In this ruling there is no error.

II. Defendant urges that the circuit court had no jurisdiction of the appeal. A transcript of the justice was filed in the office of the clerk of the district court on the 18th day of October, 1868, prior to the taking effect of the act creating the circuit court, which went into operation January 1, 1869. It cannot be contended that the circuit court had not general jurisdiction over the subject of this controversy. It has exclusive jurisdiction of, all appeals from justices of the peace. Laws 1868, ch. 86, § 5.

This appeal having been taken before the act creating the circuit court went into operation was properly pending in the district court, yet, there can be no question biff that the parties might have appeared in the district court, and by consent have transferred the cause to the circuit court. See section 7 of the act aforesaid.

And if the cause had been transferred at the request of one party, and the other had voluntarily appeared and without any objection had submitted the cause to trial, he would *571thereby have conferred jurisdiction and estopped himself from afterward questioning it, for the want of jurisdiction in this case is not of that character that consent cannot confer it. Now, in this case the question of jurisdiction is presented for the first time in this court.

The defendant made a motion for a new trial, on the ground of fraud and violation of an agreement upon the part of defendant, in procuring the judgment. It is not hinted that the court had no jurisdiction to entertain the original action, nor to determine the motion upon the grounds stated. By thus failing to present the question of jurisdiction, and calling upon the court to entertain a motion which it could do only upon the ground that its jurisdiction was conceded, the defendant has conferred jurisdiction and estopped himself from questioning it in this court.

Affirmed.