16. JURISDICTION AS TO AMOUNT.-Courts are sometimes limited in their jurisdiction by a constitutional or statutory provision that they shall have jurisdiction where the amount in controversy shall exceed, or shall not exceed, a certain sum.' Where such limitation is imposed, a court has no authority to entertain a case not within the amount fixed by law. Where the jurisdiction is limited to a certain sum by the constitution of a state the legislature can not increase such jurisdiction." The question as to what shall control in determining what is the amount in controversy frequently arises. The rule usually adopted is, that the amount alleged in the pleading of the plaintiff, the ad damnum clause, controls.3 In some of the cases the prayer for relief is held to control. In others, that parol proof will be heard to show the actual amount in controversy and oust the jurisdic tion.3 The courts have not always held themselves bound by the damages alleged in the complaint, where that is held to be the test of jurisdiction. Where it is apparent that the amount is alleged in bad faith it will be disregarded. Where the complaint contains more than one count, setting up different causes of action, properly joined, the totals of all the counts will determine the question of jurisdiction. But it has been held that it is the conclusion of the pleading that must control, and that where there are several counts showing more than the jurisdictional amount, but one general demand for damages is made, at the close of the pleading, for an amount within 2 112 Am. & Eng. Enc. of Law, 283. Zander v. Coe, 5 Cal. 230; Small v. Girvin, 6 Cal. 447; post, sec. 24. 1 Work's Ind. Prac. & Pl., sec. 30; Short v. Scott, 6 Ind. 430; Lord v. Goldberg, 81 Cal. 599; 22 Pac. Rep. 1126; Greenbaum v. Martinez, 86 Cal. 461; 25 Pac. Rep. 12; Stone . Murphy, 2 Ia. 35; Culbertson v. Tomlinson, 1 Mor. (Ia.) 404; Abbott v. Gatch, 13 Md. 314; 71 Am. Dec. 643. Alexander v. Thompson, 38 Tex. 533. Collins t. Collins, 37 Pa. St. 387, 390. Fix v. Sissung, 83 Mich. 561; 47 N. W. Rep. 340. Wetherill v. Inhabitants, etc., 5 Blkf. (Ind.) 357; Short v. Scott, 6 Ind. 430. the jurisdiction of the court, this general conclusion controls and the court has jurisdiction.' Where an account is filed as the cause of action, without a pleading, as is sometimes allowed, the footing of the account controls.2 Where two are joined as defendants, and the amount shown to be due from one of them is large enough to give jurisdiction, it has been held that in the absence of any objection of misjoinder of parties the jurisdiction of the court, as to both defendants, will be maintained.3 But where the action is against defendants, properly joined, but who are severally liable for different amounts, if the sum due from any one of the defendants is less than the jurisdictional amount, the court has no jurisdiction of the action, as against him, although the amount claimed from other defendants may be sufficient to give jurisdiction as to them.* It has been held that where the complaint alleges an amount of damages within the jurisdiction of the court, but the verdict of the jury fixes it at a sum below the jurisdictional amount, the case should be dismissed. So where in replevin the affidavit states the value within the jurisdiction of the court, but the judgment. of the court is to the contrary. Usually statutory provisions fixing the amount necessary to give jurisdiction exclude interest and costs. This is the provision of the statute of the United States giving jurisdiction to the federal courts; and in an action on coupon bonds the amount due on the coupons is interest and 1 Culley v. Laybrook, 8 Ind. 285. 2 Mitchell v. Smith, 24 Ind. 252. In this case the rule was adhered to although upon a calculation it appeared that the footing was erroneous, and that if the footing had been correctly stated the jurisdiction of the court would have been ousted. 3 Cotter v. Parks, 80 Tex. 539; 16 S. W. Rep. 307. Thomas v. Anderson, 58 Cal. 99; Derby v. Stevens, 64 Cal. 287; Hyman v. Coleman, 82 Cal. 650; 23 Pac. Rep. 62. Louisville, etc., R. W. Co. v. Johnson, 67 Ind. 546. must be excluded in arriving at the jurisdictional amount.1 And protest fees are part of the costs and not of the "matter in dispute." 2 Where a note provides for an attorney's fees it is part of the indebtedness and not interest or costs.3 In some of the states, if the amount of recovery is below the jurisdictional amount, the judgment will be set aside and the action dismissed unless the amount is reduced by a set-off. But the general rule is that the recovery of an amount less than is necessary to give the court jurisdiction will not affect the jurisdiction of the court to render and enforce judgment for such amount, the only effect of such a result being to cast the costs of the action on the plaintiff. And where the amount found due is in excess of the jurisdictional amount the excess may be remitted and judgment taken for the balance." A plaintiff may bring his action for less than is due him, remitting the balance, and thus bring his case within the jurisdiction of an inferior court.' This right to waive a part of his claim, in order to give jurisdiction, is sometimes given by statute. And if the plaintiff limits his ad damnum clause to an amount within the jurisdiction of the court, this of itself operates as a remitter of the excess over that sum. At least it will Howard v. Bates County, 43 Fed. Rep. 276. Baker v. Howell, 44 Fed. Rep. 113. Moore v. Foy, 15 S. W. Rep. 199. Camp v. Marion, 91 Ala. 240; 8 So. Rep. 786. Jackson v. Whartenby, 5 Cal. 95; Derby v. Stevens, 64 Cal. 287; Abbott v. Gatch, 13 Md. 314; 71 Am. Dec. 643. 6 Velvin v. Hall, 78 Ga. 136. Stewart v. Thompson, 85 Ga. 829; 11 S. E. Rep. 1030; Fuller v. Sparks, 39 Tex. 136; Hempler v. Schneider, 17 Mo. 258; Denning v. Eckelkamp, 30 Mo. 140; Matlack v. Lare, 32 Mo. 262; Litchfield v. Daniels, 1 Col. 268; Bennett v. Ingersoll, 24 Wend. 113; Dowditch v. Salisbury, 9 Johns. 366; Raymond v. Strobel, 24 Ill. 114; Grayson v. Williams, 12 Am. Dec. 570, n.; Koraski v. Foster, 20 Ill. 34. Quimby v. Hopping, 52 N. J. L. 117; 19 Atl. Rep. 123. 'Litchfield v. Daniels, 1 Col. 268. be presumed, where he demands less, that he has remitted the excess.1 A running account, consisting of several items, can not be divided to give jurisdiction.2 It is held in some cases that where "the sum demanded determines the jurisdiction a remitter of a part of the amount demanded, after suit brought, will not give jurisdiction. And in others it is held that where a remitter of a part of the claim actually due is made before the action is brought, and the suit is for an amount within the jurisdiction, the court can not entertain it.* A plaintiff may give the court jurisdiction by failing to claim interest on his demand.5 In the federal courts, the amount necessary to give the court power to act is a jurisdictional fact that must be properly averred in the complaint or bill, or the court will refuse to assume jurisdiction of the cause." In an action to quiet title to real estate, the whole value of the land is the test of jurisdiction. So in an action to set aside fraudulent conveyances, the amount in controversy is the value of the land alleged to have been fraudulently conveyed.3 1 Bowditch v. Salisbury, 9 Johns. 366. Grayson v. Williams, Walker, 298; 12 Am. Dec. 568. Peter v. Schlosser, 81 Pa. St. 440. Collins v. Collins, 37 Pa. St. 387, 390; Bower v. McCormick, 73 Pa. St. 429; Simpson v. Rawlings, 1 Scam. (Ill.) 28; Sands v. Delap, 1 Scam. (Ill.) 167. But see Evans v. Hall, 45 Pa. St. 237, in which it was held that a plaintiff might remit or fail to claim a part of the interest due him, and thus bring his case within the jurisdiction of the court, although, in that state, interest is not excluded in computing the amount demanded. The case of Simpson v. Rawlings, 1 Scam. (Ill.) 28, was controlled by a direct statutory provision making the whole amount of the contract sued on the test. This rule was changed by later statutes. Raymond v. Strobel, 24 Ill. 114. 5 Simpson v. Updegraff, 1 Scam. (Ill.) 594; Bates v. Bulkley, 2 Gil. 389; Evans v. Hall, 45 Pa. St. 237. 6 Ante, sec. 12: Lehigh, etc., Iron Co. v. New Jersey, etc., Iron Co., 43 Fed. Rep. 546; Oleson v. Northern Pac. R. Co., 44 Fed. Rep. 1. 'Lehigh, etc., Iron Co. v. New Jersey, etc., Iron Co., 43 Fed. Rep. 545; Lovett v. Prentice, 44 Fed. Rep. 459. 8 Simon v. House, 46 Fed. Rep. 317. In the federal courts, the value of the matter in controversy, as alleged in the bill or complaint, is not conclusive. It may be shown to be less by the evidence in support of a plea to the jurisdiction, and a dismissal secured.1 The value of the property is what it could be sold for in the ordinary course of business.' A successful defense as to a part of the claim, whereby the amount is reduced below the jurisdictional amount, does not oust the jurisdiction of the court.3 Where, in a creditor's bill, the amount claimed by the original plaintiff is above the jurisdictional amount, other creditors may come in and assert their claims, although the amount due them would not, alone, be sufficient to give the court jurisdiction; and where the fund to be distributed, in such a case, exceeds $5,000, the appellate jurisdiction of the supreme court of the United States is not affected by the fact that the amounts decreed to some of the creditors is less than that sum.' The fact that the defendant has set up a counter claim, or set-off, does not affect the question of jurisdiction. It is the amount that the plaintiff puts in controversy that controls. The general rule is that where the sum claimed is reduced by a set-off, below the jurisdictional amount, power of the court to render judgment is not thereby affected. the A receiver of a national bank may sue in the United States circuit court, without regard to the amount involved, under the statute authorizing officers of the United States to sue in the federal courts. And the same rule applies where the action is by an "agent" of a national Simon v. House, 46 Fed. Rep. 317. Berthold v. Hoskins, 38 Fed. Rep. 772. 'Hardin v. Cass County, 42 Fed. Rep. 652. 'Handley v. Stutz, 139 U. S. 417; 11 Sup. Ct. Rep. 117. Lord v. Goldberg, 81 Cal. 599; 22 Pac. Rep. 1126; Livingston v. L'Engle, 27 Fla. 502; 8 Sou. Rep. 728; Gillespie v. Benson, 18 Cal. 410; Odell v. Culbert, 9 Watts & Serg. 66; 42 Am. Dec. 317. Odell v. Culbert, 9 Watts & Serg. 66; 42 Am. Dec. 317. Rev. Stat. U. S., sec. 629, sub. 3; Armstrong v. Ettlesohn, 36 Fed. Rep. 209; Yardley v. Dickson, 47 Fed. Rep. 835. |