¶1ERROR TO THE CIRCUIT COUKT OE THE UNITED STATES' EOR THE ' DISTRICT OE NEBRASKA.
¶2When the record* in the .court below is silent as to the value of the matter 1 in dispute, it is good practice for that court to allow affidavits and counter affidavits of value to be filed under directions from the court.
¶3The 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 thé jurisdictional Value. . - ■"
¶4This was an* action fór the possession of real estate. Judg- • ment. 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.
¶5Mr. Lewis-A. Groff, Mr. C. 8. Montgomery, and Mr._M. H. Sessions for the motion. .
¶6Mr. G. 0. Whedon and Mr. J. G.- Crooker opposing.
¶8delivered the opinion of the court.
¶9Our 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 valúe. On the 16th of September, 1884, on mo-, tion, leave was given the defendant in the court below to file affidavits of value that day, and the plaintiff to file counter, affidavits 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 five thousand dollars, and others that it was less. On the 5th of May,' 1885, the district judge, .without' formally deciding the 'question, of valúe, .allowed a; writ of error, thus sending the *388case here on the- affidavits, free from any decision whatever by the court below as to their effect. In this respe'ct 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.
¶10• 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 five thousand dollars. This he has not done. Two witnesses . swear that the property is worth more than six thousand dollars, and- eight that it is worth five thousand dollars, “ 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 ■$3000 to about $3500, and the certificate of the county clerk shows that it was valued for taxation in 1884 at only seven hundred, dollars. Under these circumstances, we think ^the decided preponderance of the evidence is against our jurisdiction, and the motion to dismiss is therefore granted.
¶11■ Dismissed.