Cooper v. Dillon

¶1l. appeal: amount in controversy: how determined. -Counsel for appellee claims that this court has no jurisdiction of the appeal because the amount in controversy as shown by the pleadings does not ex- . . . . _ ceed one hundred dollars, and there is no certificate of the trial judge as required by section 3173 of the Code.

¶2No cross-claim was filed by the defendants, and the amount in controversy, as shown upon the face of the petition, must determine the question. It appears from the petition that the trustees assessed the value of the fence in controversy at $40, and that their fees amounted to $8. The prayer of the petition is as follows: “ Plaintiff therefore demands judgment against the defendants in twice the amount of the value of said fence, and fees of said trustees as shown by said certificate, in all $110, and for costs.” It is doubtful whethei under this prayer plaintiff intended to include double the amount of the fees. But whether he did or not, he was at the most entitled to recover but ninety-six dollars, and the amount of his recovery must be fixed by the allegations of his petition, rather than by the prayer thereof. If the defendants had made default he could not have recovered $100.

¶3Counsel for appellant claims that plaintiff was entitled to one per cent a month on the amount found by the trustees under section 1491 of the Code, and that this would make the amount in controversy exceed $100. There are two answers to this position. 1st. The petition does not claim such interest, and 2d. This action.is brought under sections 1492 and 1493 of the Code, which allow a recovery of double *369the value of the fence, and not one per cent a month in addition thereto.

¶4In our opinion the amount in controversy did not exceed $100, and this court having no jurisdiction the appeal must be dismissed.

¶5Appeal dismissed.