Johnson v. Board of Commissioners of Randolph County

• Decision Date: 11 December 1894
• Docket Number: 17,099
• Citation: 39 N.E. 311,140 Ind. 152
• Parties: Johnson v. The Board of Commissioners of Randolph County
• Court: Indiana Supreme Court

39 N.E. 311

140 Ind. 152

Johnson v. The Board of Commissioners of Randolph County

No. 17,099

Supreme Court of Indiana

December 11, 1894

Petition for Rehearing Overruled Feb. 6, 1895.

From the Randolph Circuit Court.

The judgment is affirmed.

E. L Watson, J. W. Macy and J. P. Goodrich, for appellant.

O. A Marsh and J. W. Thompson, for appellee.

OPINION

McCabe, J.

This suit was begun by filing a claim against the county of Randolph before the board of commissioners of that county, by the appellant, for a money demand on the contract of said board with another, $ 4,310.19 of which had been assigned by that person to the appellant.

On the hearing before the board there was allowed to appellant, on said claim, $ 2,243.53, and the balance thereof was disallowed, to wit, $ 2,066.66.

The appellant being dissatisfied with such allowance in his favor, appealed to the circuit court. In that court the appellee filed three paragraphs of an answer of set-off, to which demurrers for insufficiency of facts were overruled.

Upon the issues formed there was a trial by the court without a jury, resulting in a finding and judgment for appellant, over his motion for a new trial, for $ 2,243.53.

Appellant being again dissatisfied with the amount of his recovery prosecutes this appeal. We are thus confronted with the question of the jurisdiction of this court to entertain this appeal. All actions seeking the recovery of a money judgment only, where the amount in controversy, exclusive of costs, does not exceed $ 3,500 on appeal, fall within the exclusive jurisdiction of the Appellate Court. Burns R. S. 1894, section 1336; Acts 1893, p. 29.

What is meant by "the amount in controversy" is the amount in controversy or actually in dispute in the court to which the appeal is taken, and not the amount in controversy in the trial court, where the amount in controversy in the two courts is not the same. It has been held by this court that where a plaintiff recovers in the trial court a judgment for a part only of his claim, and is dissatisfied therewith and appeals to this court, the amount in controversy on such appeal is the amount of the difference between his judgment and his claim, or the amount of the excess of his claim over the amount of his judgment. Reed v. Sering, 7 Blackf. 135.

The same rule prevails on appeals to the Supreme Court of the United States under statutes very much like ours. Carne v. Russ, 152 U.S. 250, 38 L.Ed. 428, 14 S.Ct. 578; Tintsman v. Nat'l Bank, 100 U.S. 6, 25 L.Ed. 530.

The amount, therefore, in controversy on this appeal is the difference between appellant's claim and the judgment he recovered in the circuit court, and that is only $ 2,066.66, which would exclude the jurisdiction of this court unless the case is brought within some exception to that rule. Subdivision first of the exceptions to section 1336, supra, provides that "the Appellate Court shall not have jurisdiction where the constitutionality of a statute, Federal or State, * * * is in question, and such question is duly presented."

Some troublesome questions have been eliminated from the case by the following written agreement between the parties, read in evidence on the trial:

"It is agreed by and between plaintiff and defendant, as a part of the facts in this case: First, that the monument in question mentioned in the plaintiff's claim was, prior to the filing of the claim by the plaintiff herein, completed according to contract and accepted by the defendant, the board of commissioners of the county of Randolph, and that the amount of $ 4,310.19, with interest from the date of filing, April 11, 1892, was and still is due the plaintiff as assignee of A. A. McKain, upon said contract, less any sum that may be due to the defendant on its set-off filed in this case.

"Second. That the amount in controversy, and claimed by the defendant to be due upon its set-off, is $ 2,000, for which the plaintiff claims credit by reason of an act of the Legislature, approved March 5, 1891, p. 121, for his relief.

"Third. That there is due to the defendant from the plaintiff, upon the set-off filed in this case, the sum of $ 2,000, with 6 per cent. interest thereon from the 8th day of September, 1891, and the defendant has a right to recover said sum and have the same deducted from the amount due the plaintiff upon his claim and complaint herein, unless the said act of the Legislature of the State of Indiana, approved March 5, 1891, supra, for the relief of the plaintiff, has the effect of relieving him from the payment of said sum, and preventing the defendant from recovering the same.

"Fourth. It is further agreed that in the event the court finds the act of the Legislature referred to invalid, the amount due the plaintiff in this case is $ 2,243.53."

The act of the Legislature referred to has a very lengthy preamble to it, reciting at great length the circumstances under which appellant became treasurer of said county, and that he had deposited certain public moneys, coming into his hands as such treasurer, in a certain bank which had failed and a receiver for said bank was appointed by the circuit court of said county, and that on a full settlement by such receiver appellant had received as dividends $ 2,000 less than the amount so deposited, and that by said failure of said bank said sum had...