141 U.S. 557

Suit by Henry M. Rector against Matilda Lipscomb to declare a trust in lands, and to secure a conveyance thereof. Bill dismissed, and plaintiff appeals. Heard on motion to dismiss the appeal.

The facts of the case fully appear in the following statement by Mr. Justice BREWER:

On April 29, 1884, appellant filed his bill in the circuit court of the United States for the eastern district of Arkansas, alleging that he was the equitable owner of lot 10, in block 125, in the town of Hot Springs, Ark.; that the legal title stood in the name of defendant; and praying that she be adjudged a trustee for his benefit, and ordered to convey the premises to him. On the final hearing a decree was entered, dismissing the bill. Nearly two years thereafter, without notice to the appellee, and on the single affidavit of appellant that the property was worth over $5,000, an appeal was allowed. Subsequently, and at the same term, the appellee filed in the circuit court a motion to set aside the order allowing an appeal, and, to sustain her motion, the affidavits of 16 citizens of Hot Springs, among them the collector of taxes and sheriff and several real-estate brokers, showing that the value of the property was not to exceed $3,500, and probably not over $2,500. Upon this testimony the circuit court made an order setting aside and vacating the allowance of an appeal, with leave to the appellant to renew his motion therefor, and file additional affidavits as to the value of the property. Appellant took no further action. Prior, however, to the filing of this motion, the citation had been served on appellee, and the record filed in this court. The appellee now moves to dismiss the appeal on the ground that there is not $5,000 involved in the controversy.

A. H. Garland and H. J. May, for appellant.

John McClure, for appellee.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.

The motion to dismiss the appeal must be sustained. Upon the entire testimony finally presented to the circuit court and transmitted in the record, original and supplemental, to this court, the proof is overwhelming that the value of the property did not exceed $5,000; and this positive testimony is reinforced by all that appears in the case in respect to its situation and condition. There is little room for doubt on this matter, not withstanding the opinion of appellant that the property is worth over $5,000. It is not in the power of the circuit court to determine the extent and limits of our jurisdiction, for that is a matter which this court must finally decide for itself. The practice which is to be pursued, and the rules which are to control, have been clearly and fully stated by the chief justice in the recent case of Cattle Co. v. Needham, 137 U. S. 632, 11 Sup. Ct. Rep. 208, in which this court, while deciding that, where the value is not definitely determined by the pleadings or decree, it should generally be settled in the first instance by the circuit court upon notice and testimony, and not upon additional testimony here, also held that the showing made in that case in the circuit court by affidavits was not sufficient to establish a value in excess of $5,000, and therefore dismissed the writ of error. In this case, by a like showing, the value clearly did not exceed $5,000, and therefore we have no jurisdiction. This is not like the case of Gage v. Pumpelly, 108 U. S. 164, 2 Sup. Ct. Rep. 390, where the affidavits left the matter doubtful, and therefore we declined to dismiss the appeal which had been allowed by the circuit court. Nor is it sufficient answer to this that the circuit court had no power to set aside the order allowing an appeal after the appeal had been perfected and the record filed here, (Keyser v. Farr, 105 U.S. 265;) for, under the circumstances, it is no more than right that we should consider these subsequent affidavits. The appellant was present at the hearing of this motion. It does not appear that he raised any question as to the power of the court to entertain it, and he was given leave to file additional affidavits if he desired. All these matters, including the affidavits, are presented to this court by a supplemental record brought up by a stipulation of parties. While the order setting aside the allowance of an appeal may have been ineffectual because the case had passed out of that into this court, yet these affidavits of value, one by the plaintiff and sixteen by the witnesses of the defendant, were all filed in that court, filed for the purpose of determining the right to an appeal, and have all come regularly before us, and are presented for our consideration. Although, in a doubtful case, we shall not disturb the ruling of a circuit court granting or vacating an appeal, yet, when we are fully satisfied that the amount in controversy is not sufficient to give us jurisdiction, we ought not to attempt an inquiry into the merits of the case which is sought to be appealed. Unless we exercise a supervising power over these matters, many cases might be thrust upon our consideration through the inattention of the trial court, or the mistake or wrong of the defeated party, which are not, in fact, within our jurisdiction. Upon the testimony which is called to our attention by the action of the circuit court and the certificate of the circuit clerk in such manner that we cannot shut our eyes to it, it is obvious that the amount in controversy is not sufficient to give us jurisdiction. Under the circumstances, it would be sacrificing substance to form, and assuming a jurisdiction which we do not have, to hold that because this testimony did not get before the trial court in time for its primary action it must be wholly ignored by us. It reaches us before we are called upon to act, and comes to us from that court. We hold that, under all the showing that is presented, the amount in controversy is not sufficient to give us jurisdiction, and therefore the appeal must be and is dismissed.