bank, appointed under the national banking act to take the place of the receiver.'

The limitation as to amount necessary to give the circuit court jurisdiction does not apply where the United States is plaintiff or petitioner.2

As to what shall be considered the amount in controversy, as affecting the jurisdiction of the appellate courts, the authorities are not uniform. It is not only necessary that a sufficient amount to give jurisdiction was in controversy in the court below, but on appeal it must appear that the controversy as to that amount is continued by the appeal.3

In some cases the same test that determines the right of the court of original jurisdiction to act in the case is applied in the appellate court. Thus, it is held that where the amount in controversy in a justice's court is the sum demanded in the complaint, the appellate court, whose jurisdiction is in the same amount, has jurisdiction, although the amount of the judgment, if regarded as the amount in controversy, would not be within its appellate jurisdiction.*

Sometimes it is held that the amount in controversy in the appellate court is the difference between the amount demanded in the complaint and the amount of the judgment, where the appeal is by the plaintiff from a judgment in his favor for less than his complaint demands; and that where the defendant appeals, the amount of the judg ment controls."

11 Sup. Rev. Stat., 2d ed., p. 107; McConville v. Gilmour, 36 Fed. Rep. 277.

2 United States v. Shaw, 39 Fed. Rep. 433.

McCoy v. McCoy, 33 W. Va. 60; 10 S. E. Rep. 19.

* Solomon a. Reese, 34 Cal. 28; Dalshiel v. Slingerland, 60 Cal. 653.

5 Votan v. Reese, 20 Cal. 90; Skillman v. Lachman, 23 Cal. 198; 83 Am. Dec. 96.

Votan v. Resse, 20 Cal. 90; Ex parte Sweeney, 126 Ind. 583; 27 N. E. Rep. 127, 129; Louisville, etc., R'y Co. v. Coyle, 85 Ind. 516; Bogart v. The City of New Albany, 1 Ind. 38; Överton v. Overton, 17 Ind. 226; Board of Commissioners v. Diebold Safe & Lock Co., 133 U. S. 473; 10 Sup. Ct. Rep. 399; District of Columbia v. Gannon, 130 U. S. 227; 9 Sup.

in

In

There may be an appeal by a plaintiff from a judgment his favor for less than the jurisdictional amount.

ch

cases, the usual test of the amount alleged by him

bis complaint must be applied.'

Where the amount of the verdict is below the jurisdictional amount, but by reason of the accumulation of interest thereon the judgment is above it, the appellate court has jurisdiction. But the accumulation of interest on the judgment can not give the supreme court jurisdiction where the judgment has been rendered in the trial court for less than the jurisdictional amount, and affirmed on appeal to an intermediate court of appeal, at which time the accumulated interest has, if included, increased the actual amount then due on the judgment to a sum sufficient to give jurisdiction.3

But, where the original judgment is for a certain sum, and interest from the date of the judgment, and, at the time of the affirmance below, the accumulated interest has increased the amount to a sum within the jurisdiction of the supreme court, the latter court has jurisdiction of the appeal. And so, if, by the judgment of affirmance appealed from, interest sufficient to increase the sum to the jurisdictional amount is directed to be added to the judgment of the trial court."

Where the amount in controversy does not appear from the record, the burden of showing that it is sufficient to give the Supreme Court of the United States jurisdiction rests upon the plaintiff in error. It is otherwise, if the court below has found the value, or where the appeal has Ct. Rep. 508; Painter v. Guirl, 71 Ind. 240; Sprinkle v. Toney, 73 Ind.

592.

Elliott's App. Pro., sec. 60.

Board of Commissioners v. Diebold Safe & Lock Co., 133 U. S. 473; 10 Sup. Ct. Rep. 399.

3

District of Columbia v. Gannon, 130 U. S. 227; 9 Sup. Ct. Rep. 508;

Openshaw

v. Utah & N. R'y Co., 21 Pac. Rep. 999; Johnson v. Tully, 12

Pac. Rep. 567; Elliott's App. Pro., sec. 61.

Zeckendorf v. Johnson, 123 U. S. 617; 8 Sup. Ct. Rep. 261.

5 District of Columbia v. Gannon, 130 U. S. 227; 9 Sup. Ct. Rep. 508.

Wilson v. Blair, 119 U. S. 387; 7 Sup. Ct. Rep. 230.

Zeigler v. Hopkins, 117 U. S. 683; 6 Sup. Ct. Rep. 919.

been allowed by the court below, and there is evidence to sustain the right of appeal.1

2

It is held in some of the cases that the amount in controversy is to be determined "from the pleadings, and not from the formal demand for judgment." This is subject, however, to the rule above stated that, where the judgment is for the plaintiff and the defendant appeals, the amount of the judgment controls.3

Where the amount of the judgment controls, the plaintiff may remit enough of his verdict to bring the judgment below the amount fixed, and this deprives the appellate court of jurisdiction. But this can not be done after the jurisdiction of the supreme court has attached. And the trial court may refuse to permit the remitter, and should do so if it is apparent that the object is to prevent an appeal.

Again, it is held that, where the appeal is by the plaintiff, the amount of his claim is the amount in controversy.

Generally it is held that in arriving at the amount in controversy in the appellate court, the demand for relief is not conclusive, but the body of the pleading may be looked to to ascertain the amount.8

If the court in which the action is brought has not jurisdiction of the amount in controversy, the appellate court is without jurisdiction, although it might have

1

Gage v. Pumpelly, 108 U. S. 164; 2 Sup. Ct. Rep. 230.

Ex parte Sweeney, 126 Ind. 583; 27 N. E. Rep. 127; Elliott's App. Pro., sec 56.

3 Ex parte Sweeney, 126 Ind. 583; 27 N. E. Rep. 127.

First National Bank v. Redick, 110 U. S. 224; 3 Sup. Ct. Rep. 640; Alabama, etc., Life Ins. Co. v. Nichols, 109 U. S. 232; 3 Sup. Ct. Rep. 120; Elliott's App. Pro., sec. 62.

5 New York Elevated R. Co. v. Fifth Nat. Bank, 118 U. S. 608; 7 Sup. Ct. Rep. 23.

6 Alabama, etc., Life Ins. Co. v. Nichols, 109 U. S. 232; 3 Sup. Ct. Rep.

120.

7 Beach v. Livergood, 15 Ind. 496; Merton Gravel Road Co. v. Wysong,

51 Ind. 4.

8 Lee v. Watson, 1 Wall. 339; Ex parte Sweeney, 126 Ind. 583; 27 N. E. Rep. 129.

taken original cognizance of the case. And if the plaintiff, after the cause reaches the appellate court in which the case is to be tried de novo, so amends his complaint as to increase the amount in controversy to a sum in excess of the jurisdictional amount in the court below, the jurisdiction of the appellate court is thereby ousted, and the cause must be dismissed.2

It is held otherwise in some cases, but they seem to be founded upon the peculiar language of the statutes of the states in which they were rendered, indicating that the appellate court should try and dispose of the cases as if they had been originally brought before them.3

It will be observed that there is considerable conflict. and uncertainty in the decisions relating to this subject, particularly as to the means and manner of ascertaining the amount in controversy, in attempting to determine whether a court has or has not jurisdiction. For these reasons, many of the propositions referred to have not been stated to be so, but that they have been held to be so, which is not a satisfactory way of putting it. But there are certain propositions bearing upon and affecting this subject of jurisdiction as to amount that may be safely stated, in conclusion, as established by the clear weight of authority. They are that in a court of original jurisdiction the ad damnum clause in the plaintiff's pleading fixes the amount in most courts, conclusively, but in only prima facie. That in an appellate court in which the cause is tried de novo the same rule prevails, but where the appeal is to a court of errors, if the plaintappeals, the same test is applied, and if the appeal is by the defendant, the amount of the judgment is the amount in controversy. In the federal courts the ques

some

iff

Klaise v. The State, 27 Wis. 462; Mays v. Dooley, 59 Ind. 287; Pritchard v. Bartholomew, 45 Ind. 219; Stringham v. Board of Supervisors, 24 Wis. 594; Boyce v. Foote, 19 Wis. 215; Berroth v. McElvain, 41 Kan. 269; 20 Pac. Rep. 850; Levi v. Sherman, 6 Ark. 182; 42 Am. Dec. 690; Wahrenberger, 9 Tex. 313; 58 Am. Dec. 145; People v. Skinner, 13 Ill. 287; 54 Am. Dec. 432.,

Horan v.

2

Pritchard v. Bartholomew, 45 Ind. 219.

› Dressler v. Davis, 12 Wis. 58, and cases cited.

tion as to the amount in controversy is open to proof even by parol. If the value of the property in controversy appears from the record, by the plaintiff's pleading or otherwise, this fixes the amount prima facie, but it may be disproved by parol and the want of jurisdiction established. If the appeal is by the defendant, from a money judgment, the amount is fixed by the judgment itself, as in other courts.

17. EXCLUSIVE AND CONCURRENT JURISDICTION.-Exclusive and concurrent jurisdiction have been defined.'

3

Where exclusive jurisdiction of a subject-matter is given to one court, no other court can entertain such jurisdiction. If, in this country, such jurisdiction is given by the constitution of the United States, or of a state, the same can not be conferred upon any other court by legislative enactment. If, however, the constitution gives a court jurisdiction over a subject-matter, without making it exclusive, the legislature may confer the same jurisdiction upon another court, thereby making the jurisdiction concurrent in the two courts. But the constitutional jurisdiction existing in the first court can not be taken away by statute."

Where jurisdiction is given by the constitution, it may be enlarged, but not diminished, by the legislature. But the enlargement of jurisdiction must not be such as to change the fundamental nature, or local character, of the court.7

Where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction,

1 Ante, sec. 9.

2 Stanhart v. Sitley, 19 Atl. Rep.,464.

s Harris v. Vanderveer, 21 N. J. Eq. 424; Hutkoff v. Demorest, 103 N. Y. 377; 8 N. E. Rep. 899; In re Cleveland, 51 N. J. Law, 311; 17 Atl. Rep. 772; post, sec. 24.

4 Courtwright v. Bear R. W. & M. Co., 30 Cal. 573; Wells' Jur., sec. 154; Berkowitz v. Lester, 121 Ill. 99; 11 N. E. Rep. 860; Clepper v. The State, 4 Tex. 242; post, sec. 24.

5 Post, sec. 24.

Harris v. Vanderveer, 21 N. J. Eq. 424. Landers v. Staten Island R. R. Co., 53 N. Y. 450.