When the demand in controversy is not for money, but the nature
of the action requires the value of the thing demanded to be stated
in the pleadings, affidavits will not be received here to vary the
value as appearing in the face of the record.
The filing of affidavits as to value will not ordinarily be
permitted where evidence of value has been adduced below on both
sides, and the proofs have been transmitted, either with or without
the announcement of a definite conclusion deduced therefrom.
Where a writ of error is brought or an appeal taken without
question as to the value, and the latter is nowhere disclosed by
the record, affidavits may be received to establish the
jurisdictional amount, and counteraffidavits may be allowed if the
existence of such value is denied in good faith.
If there be a real controversy as to the value of the demand in
controversy, it should be settled below in the first instance, and
on due notice, not here upon
ex parte opinions.
The value of the property in dispute in this case was alleged in
the petition, but was not an issuable fact. The circuit court
allowed the writ of error on the
prima facie showing made
by the defendant. The plaintiffs
Page 137 U. S. 633
subsequently presented evidence to the contrary, but that court
declined to decide the controversy and referred it to this
Court.
Held:
(1) That under such circumstances it was not proper to allow
affidavits as to value to be filed here.
(2) That the jurisdictional value was not made out by a
preponderance of evidence.
Motion to dismiss. The case is stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This was an action of trespass to try title brought by Needham
and others against the Red River Cattle Company in the Circuit
Court of the United States for the Northern District of Texas.
The petition alleged the land to be of the reasonable value of
$4,400. Defendant pleaded not guilty and the statute of
limitations. A verdict was rendered in favor of plaintiffs for an
undivided one-half interest in the land sued for, and judgment was
entered thereon January 24, 1890. A motion for a new trial was
overruled on the 10th of February, and on that day the defendant
filed three affidavits tending to show that the half interest had a
value in excess of $5,000, whereupon a writ of error was
allowed.
On the 22d of February, plaintiffs filed a motion to set aside
the allowance of the writ of error, stating want of notice of the
application for it, accompanied by four affidavits and a letter
from the county where the land was situated, tending to establish
that the value of one-half was far less than $5,000, upon which the
circuit court entered the following order:
"On this day came on to be heard the motion of the plaintiffs to
set aside the writ of error granted herein, and the court having
heard and considered said motion, and being of the opinion that the
question of the value of the land in controversy is a question that
the trial judge is not called upon to
Page 137 U. S. 634
decide, but one to be determined in the supreme court, on the
affidavits, if they see fit to consider them, in order to determine
their jurisdiction, it is ordered by the court that said motion be
refused."
The record having been filed in this Court, and notice of a
motion to dismiss given, plaintiff in error, without leave first
obtained, submits, with its brief upon the motion, eight additional
affidavits in reference to value, and defendants in error ask that
if these are considered, time may be given to them to produce
counteraffidavits.
As stated by Mr. Chief Justice Taney in
Richmond
v. Milwaukee, 21 How. 391, in cases in which the
value does not, according to the usual forms of proceeding, appear
in the pleadings or evidence in the record, affidavits have been
received to show that the value is large enough to give
jurisdiction to this Court,
Course v. Stead,
4 Dall. 22;
Williamson v.
Kincaid, 4 Dall. 19, but
"in
Rush v. Parker, 5 Cranch 287,
Mr. Justice Livingston expressed his opinion strongly against
giving time to file affidavits of value, and the court refused to
continue the case for that purpose."
And the Chief Justice added that a practice to postpone or
reinstate a case in order to give the party time to furnish such
affidavits
"would be irregular and inconvenient, and might sometimes
produce conflicting affidavits, and bring on a controversy about
value occupying as much of the time of the court as the merits of
the case."
The rule was then declared that
"where the value is stated in the pleadings or proceedings of
the court below, affidavits here have never been received to vary
it or enhance it in order to give jurisdiction."
In
Talkington v. Dumbleton, 123 U.
S. 745, it was accordingly held that when the value of
the property in dispute was necessarily involved in the
determination of the case in the court below, this Court would not,
on a motion to dismiss for want of jurisdiction, consider
affidavits tending to contradict the finding of that court in that
respect, and Mr. Chief Justice Waite remarked:
"In
Zeigler v. Hopkins, 117 U. S.
683,
117 U. S. 689, where affidavits
were submitted, the finding of the court below as to value was not
a material question in the case upon
Page 137 U. S. 635
its merits, but was more in the nature of an inquiry for the
purpose of determining whether an appeal should be allowed, as in
Wilson v. Blair, 119 U. S. 387. Here, however,
the value of the property was one of the questions in the case, and
necessarily involved in its determination."
In
Zeigler v. Hopkins, this Court treated the finding
of the court below upon the question of value as entitled to well
nigh conclusive weight, while in
Wilson v. Blair it was
declared to be good practice for the circuit court to allow
affidavits and counteraffidavits of value to be filed, as
calculated to save trouble to the parties and to the court. There,
as in the case at bar, the district judge holding the circuit
court, without the formality of deciding the question of value,
allowed the writ of error, thus sending the case here on the
affidavits free from any decision whatever as to their effect.
In
Gage v. Pumpelly, 108 U. S. 164, the
appeal was allowed after a contest as to the value of the matter in
dispute, Judge Blodgett, who held the circuit court, filing an
opinion upon the question, and Mr. Chief Justice Waite, speaking
for the Court, said:
"When an appeal has been allowed, after a contest as to the
value of the matter in dispute, and there is evidence in the record
which sustains our jurisdiction, the appeal will not be dismissed
simply because, upon examination of all the affidavits, we may be
of the opinion that possibly the estimates acted upon below were
too high."
The result of the cases may be fairly stated to be: (1) where
the demand is not for money, but the nature of the action requires
the value of the thing demanded to be stated in the pleadings,
affidavits will not be received here to vary the value as appearing
upon the face of the record; (2) nor will the filing of such
affidavits be ordinarily permitted where evidence of value has been
adduced below on both sides, and the proofs have been transmitted
either with or without the announcement of a definitive conclusion
deduced therefrom; (3) but where the writ of error is brought, or
appeal taken without question as to the value, and the latter is
nowhere disclosed by the record, affidavits may be received to
establish the jurisdictional amount, and counteraffidavits may
be
Page 137 U. S. 636
allowed if the existence of such value is denied in good
faith.
The practice of permitting affidavits to be filed in this Court
arose from instances of accidental omission, where the value was
not really in dispute, and it should not be encouraged to the
extent of requiring us to reach a result upon that careful weighing
of conflicting evidence, so frequently involved in determining
issues of fact. If there be a real controversy on the point, let it
be settled below in the first instance, and on due notice -- not
here upon
ex parte opinions, which may embody nothing more
than speculative conclusions.
In the case in hand, the value of the whole property was alleged
in the petition, but was not an issuable fact, and the circuit
court allowed the writ of error upon the
prima facie
showing made by the defendant, and, on plaintiff's subsequently
presenting evidence to the contrary, the controversy was referred
to this Court. This being the attitude of the case, we do not think
it proper to allow affidavits to be filed here as if the question
were now raised for the first time. Upon an examination of the
record as returned, we are clear that the jurisdictional value is
not made out by a preponderance of evidence. The motion to dismiss
will therefore be sustained.
Writ of error dismissed.