majority"> Earl, J.

The plaintiff, in his complaint, seeks to recover the sum of $639.50, as the balance due him upon the various matters alleged. The defendant, in his answer, after denying many of the allegations contained in the complaint and alleging payments, expressly admits that he is indebted to the plaintiff in the sum of $230.89, “ over and above all payments, offsets and counter-claims.” The amount in controversy was, therefore, considerably less than $500, and the case was'not appealable to this court, unless made so by something now to be noticed. During the progress of the trial the defendant asked the referee to be allowed to amend his answer by alleging therein a counter-claim for $700, and he declined to allow the amendment, in substance, on the ground that the facts offered to be pleaded would nqt constitute a counterclaim.

Under section 191 of the Code of Civil Procedure, if the counter-claim had been alleged in the answer and put in issue by a reply, the amount in controversy would have been more than $500, and the case would have been appealable. But here the counterclaim was not alleged in the answer, and hence it was not in controversy in the action. It matters not whether the referee placed his refusal to allow the amendment upon an erroneous *15 view of the law or not. The defendant did not have an absolute right to the amendment. It could have been refused without invading any legal right which he had. It could not become a counter-claim in the action until it appeared in the answer. If the referee committed an error in refusing the amendment, such error could be reviewed only like any other error committed upon the trial, and the amount in controversy would have to be determined by the pleadings as they actually were. Any other view of the law would enable a defendant always to bring a case within the jurisdiction of this court, by a simple offer to amend his answer by alleging a counter-claim, and the effect would be the same, no matter upon what ground the amendment was refused. Such a construction cannot be admissible.

We are, therefore, of opinion that this ease was not appeal-able to this court, and the appeal must be dismissed, with costs.

All concur.

Appeal dismissed.

Citation profile

How this case has been treated — in progress