When the record in the court below is silent as to the value of
the matter in dispute, it is good practice for that court to allow
affidavits and counteraffidavits of value to be filed under
directions from the court.
The burden of proof is on plaintiff in error, when the record is
silent as to the value of the subject matter in dispute, to
establish that it is of the jurisdictional value.
This was an action for the possession of real estate. Judgment
for plaintiff. Defendant sued out this writ of error. The defendant
in error moved to dismiss for want of jurisdictional value in the
matter in dispute.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
Our jurisdiction in this case depends on the value of the matter
in dispute. Final judgment was entered in the action May 24, 1884.
At that time, there was nothing in the record to show the value. On
the 16th of September, 1884, on motion, leave was given the
defendant in the court below to file affidavits of value that day,
and the plaintiff to file counteraffidavits in twenty days. This
was good practice, and, if oftener adopted, would save trouble to
parties and to us. Under this leave and others of a similar
character which were afterwards granted, a considerable number of
affidavits were filed by both parties. The affidavits were
contradictory, some having a tendency to prove that the value was
more than $5,000 and others that it was less. On the 5th of May,
1885, the district judge, without formally deciding the question of
value, allowed a writ of error, thus sending the
Page 119 U. S. 388
case here on the affidavits, free from any decision whatever by
the court below as to their effect. In this respect the case
differs from
Gage v. Pumpelly, 108 U.
S. 164, where the appeal was allowed by the court in
session after considering the affidavits, and from
Zeigler v.
Hopkins, 117 U. S. 683,
where the value was found as one of the facts in the case.
The burden of showing jurisdiction is on the plaintiff in error.
He must establish as a fact by a fair preponderance of testimony
that the value of the property in dispute exceeds $5,000. This he
has not done. Two witnesses swear that the property is worth more
than $6,000, and eight that it is worth $5,000 "or more." These are
for the plaintiff in error, but there are eight on the other side
who say it is worth only from about $3,000 to about $3,500, and the
certificate of the county clerk shows that it was valued for
taxation in 1884 at only $700. Under these circumstances, we think
the decided preponderance of the evidence is against our
jurisdiction, and the motion to dismiss is therefore granted.
Dismissed.