However, instead of stopping when the venue question was settled, the trial judge proceeded to hold the complaint failed to state facts upon which relief could be granted. Upon application of the attorney for relators, as above outlined, argument was heard on the merits not only by counsel for relators, but by the attorney for the private defendants with whom the district attorney joined. When this was done the question of venue went out of the case and the respondent became subject to the jurisdiction of the District Court of Harding county. Guthrie v. Threlkeld Co., 1948, 52 N.M. 93, 192 P.2d 307; Salazar v. Garde, 1933, 37 N.M. 352, 23 P.2d 370; Singleton v. Sanabrea, 1931, 35 N.M. 491, 2 P.2d 119. We agree with the statement of respondent that the attorneys for the private litigants by joining in the defense of the motion attacking the sufficiency of the complaint could not bind the Board of County Commissioners; but, when the district attorney at the conclusion of the argument by one of the attorneys for the private litigants defendant stated he concurred in such statements, he joined in the argument on the merits as to whether the complaint stated a cause of action.

Indeed, the language of the statute, viz., that "a general appearance by all of the defendants * * * shall be considered and treated as a waiver of venue," more especially the portion thereof which we have underscored, is suggestive of a legal consequence quite independent of intent or desire. Cf. Salazar v. Garde, 37 N.M. 352, 23 P.2d 370. The defendants had a good plea under their first defense. Instead of standing on it they chose to also plead to the merits, and, we must hold, thereby entered their general appearance.

But, say counsel for defendants, the plaintiff waived error in the ruling by failing to except to the first order on motion to dismiss for absence of indispensable parties and then standing on the ruling. In other words, by amending and joining them, rather than suffering a dismissal and appealing, the plaintiff has waived error in the ruling, citing Salazar v. Garde, 37 N.M. 352, 23 P.2d 370 and Carroll v. Bunt, 50 N.M. 127, 172 P.2d 116. The doctrine relied upon has no application in the face of the claimed absence of indispensable parties. In the second syllabus by the court in Miller v. Klasner, 19 N.M. 21, 140 P. 1107, 1108, the rule is thus stated, to-wit:

I concur in the result, and am in the main brought to this conclusion by the principles that an objection based upon plaintiff's incapacity to sue should be taken advantage of by defendant at his first opportunity, and that ordinarily defendant admits plaintiff's capacity to sue when he pleads to the merits. 47 C.J., Parties § 345; 30 Am.Jur., Parties § 105 et seq. Cf. Salazar v. Garde, 37 N.M. 352, 23 P.2d 370; Thomas v. Pavletich, 31 N.M. 76, 239 P. 862. I do not think these principles have been done away with by our rules of procedure. The reason doubtless for the rule that the defendant must urge such an objection at his first opportunity is that the party in interest ought to have an early opportunity to correct the error, if any, in selecting a proper party plaintiff at an available time.

This was tantamount to pleading over to the merits after a plea in abatement was overruled. In Salazar v. Garde, 37 N.M. 352, 23 P.2d 370, 371, in quoting from 1 C.J. 273, we said: "Where a plea or other objection in abatement is overruled, defendant must stand by it if he would take advantage of the objection, and he waives it if he pleads in bar or otherwise appears to the merits." See also Patton et al. v. Walker, 35 N.M. 468, 1 P.2d 566.

This objection being matter in abatement of the action, query, whether defendant did not waive it by failing to stand on the court's action overruling its demurrer to plaintiffs' reply raising the point. Cf. Salazar v. Garde, 37 N.M. 352, 23 P.2d 370. It is next urged that the false swearing found by the jury avoids the policy.