Where no party objects to venue, the issue is waived. Pund v. Pund, 171 Ind. App. 347, 357 N.E.2d 257 (1976). K. The Waiting Period
Subject matter jurisdiction concerns whether or not the particular court has jurisdiction over the general class of actions to which the particular case belongs. Pund v. Pund, (1976) 171 Ind. App. 347, 357 N.E.2d 257; Brendanwood Neighborhood Association, Inc. v. Common Council, (1975) 167 Ind. App. 253, 338 N.E.2d 695, trans. denied (1976). Subject matter jurisdiction must be derived from the Constitution or a statute and cannot be conferred by the consent or agreement of the parties. Carpenter v. State, (1977) 266 Ind. 98, 360 N.E.2d 839; City of Marion v. Antrobus, (1983) Ind. App., 448 N.E.2d 325.
The 23 day period expired on October 18, 1990. Claycomb did not file the 12(B)(3) motion until November 5, 1990. Where a timely objection to venue is not made, the issue is waived and the court properly denied the motion to dismiss. State ex rel. Ind. Life v. Superior Court of Marion County (1980), 272 Ind. 421, 426, 399 N.E.2d 356, 359; Pund v. Pund (1976), 171 Ind. App. 347, 350, 357 N.E.2d 257, 259. Claycomb waived the venue issue, and the court properly denied the untimely 12(B)(3) motion. Affirmed.
IC 16-9.5-10-2 provides in part: We do not address Galindo's argument the Marion County Circuit Court did not have subject-matter jurisdiction because the facts underlying his proposed complaint occurred in Delaware County. This issue is a matter of venue rather than subject-matter jurisdiction, Pund v. Pund (1976), 171 Ind. App. 347, 357 N.E.2d 257, and is waived by Galindo's failure to raise it in the trial court. Ind. Trial Rules 12(H)(1), 75(A).
State ex rel. Young, supra. A court does not lose jurisdiction by committing prejudicial error or applying the wrong principle of law, or making an erroneous decision. The remedy is appeal. See e.g., State ex rel. Young, supra, (errors in recount proceedings); Myers, supra (failure to allege the size of a ditch as required in statutory proceedings); Cauldwell v. Curry (1883), 93 Ind. 363 (irregularities in ditch assessment proceedings); Renforth v. Fayette Memorial Hospital Assn., Inc. (1979), 178 Ind. App. 475, 383 N.E.2d 368, cert. denied, 444 U.S. 930, 100 S.Ct. 273, 62 L.Ed.2d 187 (1979) (judge failing to disqualify himself); Pund v. Pund (1976), 171 Ind. App. 347, 357 N.E.2d 257 (filing petition for change of custody in wrong county); Sims v. Sims (1957), 128 Ind. App. 408, 146 N.E.2d 111 (failure of proof of divorce residency). However, it has been held that compliance with statutory preconditions in the Uniform Child Custody Act is necessary to confer subject matter jurisdiction.
Subject matter jurisdiction concerns whether or not the particular court has jurisdiction over the general class of actions to which the particular case belongs. Pund v. Pund, (1976) 171 Ind. App. 347, 357 N.E.2d 257; Brendanwood Neighborhood Association, Inc. v. Common Council, (1975) 167 Ind. App. 253, 338 N.E.2d 695, trans. denied (1976). Subject matter jurisdiction must be derived from the Constitution or a statute and cannot be conferred by the consent or agreement of the parties. Carpenter v. State, (1977) 266 Ind. 98, 360 N.E.2d 839; City of Marion v. Antrobus, (1983) Ind. App., 448 N.E.2d 325.
The primary intent of the architects of the new venue rules was to promote resolution of cases on the merits. See State ex rel. Knowles v. Elkhart Circuit Ct. (1971), 256 Ind. 256, 268 N.E.2d 79; Pund v. Pund (1976), Ind. App., 357 N.E.2d 257; Gibson v. Miami Valley Milk Producers, Inc. (1973), 157 Ind. App. 218, 299 N.E.2d 631; Trial Rule 75; 4 W.F. Harvey R.B. Townsend, Indiana Practice 527-547 (1971). We note for the sake of clarity that we are addressing here the rules governing transfer of venue to a county of preferred venue as addressed in Trial Rule 75. The rules and procedure for a change of venue from a county or judge, as provided in Trial Rule 76, are entirely different and are not the subject of this opinion.
This issue should be decided in the Johnson Superior Court where the support order was first issued. Pund v. Pund, (1976) Ind. App., 357 N.E.2d 257. Collins, however, has failed to preserve this issue for review.
The State argues that Crowder waived the question of improper venue by not requesting a change or transfer of venue upon discovery that the smoking occurred in Vanderburgh County. The cases cited by the State in support of its contention of waiver of venue are State ex rel. Dean v. Tipton Circuit Court, (1962) 242 Ind. 642, 181 N.E.2d 230; and Pund v. Pund, (1976) Ind. App., 357 N.E.2d 257. However, these are civil cases where there is no obligation to establish venue unless venue be questioned by appropriate motion.