decree of divorce.10 It has been held that, for a similar reason, a suit by a stockholder to compel the corporation to permit him to inspect its books and records is not removable,11 but that the value of the right to appeal from the probate of a will is at least equal to the share of the appellant in case the decedent had died intestate.12 The value of the matter in dispute is not the amount of any contingent loss or damage which one of the parties may sustain. by a decision against him; but the amount in dispute between the parties to the pending suit.13 Thus, the reason that, on account of its probative force, the judgment may operate as an estoppel in a subsequent proceeding; 14 or affect his rights against a stranger to the suit; 15 does not increase the value of the matter in dispute. In a suit by a State treasurer, to recover a balance of unpaid taxes, less than the jurisdictional amount, where the defense was, that the defendant had tendered, in payment of all the taxes assessed against him, coupons for more than the jurisdictional amount; it was held: that the matter in dispute was the right to tender all those coupons; and that the case might be removed.16 Prospective damages, which can be recovered in the action, or which the bill is filed to prevent, should be considered in the estimate,17 when they are alleged with sufficient certainty.18 Where relief is prayed in the alternative, it seems that that which involves the larger amount is the test of the jurisdiction.19 In a suit for an accounting the jurisdictional amount 10 Caswell v. Caswell, 120 Ill. 377, 11 N. E. 342. 11 Whitney v. Am. Shipbuilding Co., 197 Fed. 777. 12 Erwin v. Walsh, 27 Fed. 579. 13 Ross v. Prentiss, 3 How. 771, 772, 11 L. ed. 824; Elgin v. Marshall, 106 U. S. 579, 27 L. ed. 249; Bruce v. M. & K. R. Co., 117 U. S. 514. 14 Elgin v. Marshall, 106 U. S. 579, 27 L. ed. 249; Bruce v. M. & K. R. Co., 117 U. S. 514, 29 L. ed. 990; New England Mtg. Co. v. Gay, 145 U. S. 123, 36 L. ed. 646. (All these were cases of appellate juris diction.) Mayor, etc., of Balitmore v. Postal Tel. Cable Co., 62 Fed. 500. 15 Smith v. Adams, 130 U. S. 167, 32 L. ed. 895 (appellate jurisdiction). 16 Green v. Brooks, 28 Fed. 215. 17 Draper v. Skerrett, 116 Fed. 206; Southern Cash Register Co. v. Montgomery, 143 Fed. 700; infra, $13. 18 Oregon R. & Nav. Co. v. Shell, 125 Fed, 979. 19 Shappirio v. Goldberg, 192 U. S. 232, 48 L. ed. 419 (appellate jurisdiction); Hayward v. Nordberg is the value of the fund of which an account is sought; 20 but where no persons not joined as parties are interested, such as creditors who are not parties to the suit, the amount in controversy does not exceed the aggregate of the amounts claimed by the different parties from each other.21 In a bill for discovery, the amount involved in the suit concerning which discovery is to be used is the test of the jurisdiction.2 22 Where the complaint or declaration contains several counts, or causes of action, in determining the value of the matter in dispute their aggregate amount is to be considered, 23 unless it appears that each is founded upon the same state of facts,24 or that the plaintiff is not in fact the owner of all the claims upon which he sues,25 or that they are improperly united; 26 but where after removal a demurrer to one of two causes of action was sustained and the remainder was for less than the jurisdictional amount, the case was remanded.27 Thus, where the complaint, in form, stated two causes of action, each for the failure to deliver a telegram, and each alleging Mfg. Co., 85 Fed. 4, 29 C. C. A. 438; 20 Rogers v. Lawton, 162 Fed. 203. 21 Mull v. Parrott Bros. Co., 218 Fed. 713 (partnership accounting); John W. Hood & Co. v. Board of School Directors, 210 Fed. 384. 22 Mutual Life Ins. Co. v. Painter, 220 Fed. 998. 23 Judson v. Macon County Fed. Cas. No. 7,568 (2 Dill. 213); Stanley v. Albany County Sup'rs, 15 Fed. 483; Hammond v. Cleaveland, 23 Fed. 1; Bernheim v. Birnbaum, 30 Fed. 885; Armstrong v. Ettlesohn, 36 Fed. 209; Chase v. Sheldon Roller-Mills Co., 56 Fed. 625; Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248, 19 U. S. App. 448; Weaver v. Norway Tack Co., 80 Fed. 700; Bergman V. Inman, Poulsen & Co., 91 Fed. 293; Davis v. Mills, 99 Fed. 39; Southern Cash Register Co. v. Montgomery, 143 Fed. 700. The State practice in this respect is not followed. Yates v. Whyel Coke Co., 221 Fed. 603. Heffner v. Gwynne-Treadwell Cotton Co., C. C. A., 160 Fed. 635; Spokane Valley Land & Water Co. v. Kootenai County, Idaho, 199 Fed. 481. Kaus v. Am. Surety Co., 199 Fed. 972, where the jurisdiction was sustained because of the joinder of two causes of action against the same surety, upon bonds given by separate saloon-keepers, under the Iowa Civil Damage Act. 24 Pooser v. Western Union Tel. Co., 137 Fed. 1001; Balitmore & O. R. Co. v. Ryan, 31 Ind. (App.) 597, 68 N. E. 923. 25 Woodside v. Beckham, 216 U. S. 117, 54 L. ed. 408. 26 Bucyrus Co. v. McArthur, 219 Fed. 266; Sloane v. Kramer Bros. & Co., 230 Fed. 727. 27 Jones v. Western Union Telegraph Co., 233 Fed. 301. damages in the sum of $1,900; the only difference being that in one it was alleged that the telegram was addressed to a woman, and in the other that it was addressed to her husband, it appearing that the telegram was the same, and that the plaintiff's counsel could not determine from the manuscript as to which of the two was the person to whom the telegram was addressed; it was held, that the cause could not be removed.28 Where the declaration contained three counts aggregating in excess of the jurisdictional amount; the first upon a contract for services at an agreed price, less than this; the second upon a quantum meruit for the same services, alleging their value at a sum in excess thereof; the third for goods sold, money lent "and a like sum of money due on a contract," such as that specified in the first, "and a like sum for commissions" in effecting the sales therein specified; it was held, that the court had jurisdiction.29 Under the former statute where the declaration contained a special count, on a fire insurance policy for $2,250, alleging a total loss, and concluding, to plaintiff's damage for $2,000, "for the recovery of which, with just costs, plaintiff brings," and common counts in assumpsit for $2,000, each concluding as in the first; it was held, that the action could be removed.30 Where a complaint in each of three counts claimed for personal injuries "the sum of $1,900 damages," and in two other counts "the further sum of $1,900;" it was held, that the case could be removed, although the court felt morally certain that it was intended to claim. damages for but one cause of action.31 It has been held: that, where it clearly appears that the different causes of action alleged, consists merely of the common counts, the value of the. matter in dispute should be determined by the amounts named in the bill of particulars.82 It makes no difference if the claims have been assigned and no one of them is equal to the jurisdictional amount.33 28 Pooser v. Western Union Tel. Co., 137 Fed. 1001. 29 Hayward v. Nordberg Mfg. Co., C. C. A., 85 Fed. 4. 30 Platt v. Phoenix Assur. Co., 37 Fed. 730. 31 Thompson v. Southern Ry. Co. 116 Fed. 890. 32 Healy v. Prevost, Fed. Cas. No. 6,297. 33 Hammond v. Cleaveland, 23 Fed. 1; Bernheim v. Birnbaum, 30 Fed. 885, 887; Chase v. Sheldon Roller-Mills Co., 56 Fed. 625; Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248, 19 U. S. App. 448; Berg Where the value of the amount in dispute cannot be reckoned from the other allegations in the bill, the statement therein that it exceeds $3,000 exclusive of interest and costs will ordinarily be sufficient.34 "Upon a bill for an injunction, where the amount involved cannot be deduced from the facts alleged, a simple allegation that the right sought to be protected is of the value of more than $3,000, exclusive of interest and costs, will usually be held to be sufficient. 35 The pleadings or the petition for removal must show that the value of the matter in dispute exceeded the jurisdictional amount,36 at the time the suit was brought.37 Where the complaint was silent, the allegation in the answer was held to be conclusive.38 An allegation, that the "amount in dispute" exceeds the jurisdictional amount, is not insufficient because it uses the word "amount" instead of "matter" in dispute.39 It has been held: that the court may, where the bill or declaration is defective in that respect, retain jurisdiction and permit an amendment, which shows the jurisdictional value of the matter in dispute. 40 Where the plaintiff exaggerates the amount in dispute, the court may, on exception properly taken, try the question of jurisdiction separately, without a jury; and if the damages appear to have been purposely and fraudulently magnified, it may dismiss the case; but its decision is reviewable by the Supreme Court.41 man v. Inman, Poulsen & Co., 91 Fed. 293; Davis v. Mills, 99 Fed. 39; Brigham-Hopkins Co. v. Gross, 107 Fed. 769. But see Waite v. Santa Cruz, 184 U. S. 302, 46 L. ed. 552. 34 Maurel v. Smith, 220 Fed. 195 35 Texas & P. Ry. Co. v. Kuteman, C. C. A, 54 Fed. 547. See Hyde v. Victoria Land Co., 125 Fed. 970; Louisville & N. R. Co. v. Smith, C. C. A., 128 Fed. 1, 5; Southern Cash Register Co. v. National Cash Register Co., 143 Fed. 659; Spaulding v. Evenson, 149 Fed. 913. 36 Strasburger v. Beecher, 44 Fed. 209; Back v. Sierra N. C. M. Co., 46 Fed. 673; Harvey v. Raleigh & G. R. Co., 89 Fed. 115; Yellow A. M. & M. Co. v. Winchell, 95 Fed. 213. 37 Strasburger v. Beecher, 44 Fed. 209. 38 W. U. Tel. Co. v. White, 102 Fed. 705. 39 Blackburn V. Portland Gold Min. Co., 175 U. S. 571, 44 L. ed. 276. 40 Davis v. Kansas City, S. & M. R. Co., 32 Fed. 863; Johnston v. Trippe, 33 Fed. 530; Whalen V. Gordon, C. C. A., 95 Fed. 305. See Citizens' Bank v. Cannon, 164 U. S. 319, 41 L. ed. 451. 41 Globe Refining Co. v. Landa The mere fact that the plaintiff recovers less than the jurisdictional amount does not justify a dismissal or a remand.42 A Texas case suggests that a distinction should be drawn between cases where the full amount claimed in the complaint is not recovered because of the plaintiff's failure to prove his allegations of fact and those where he fails because his claim is unfounded in law. It was held that where a demurrer was sustained to one of several claims for damages joined in one complaint and the aggregate amount thereof was thus reduced below the jurisdictional amount, the case must be dismissed; 43 but it has been said that the reasonable view would indicate that, when such claim was inserted in the original petition in good faith, the amount involved was in controversy, and the court having taken jurisdiction should render judgment for the remainder of the claims. Where the plaintiff sued in good faith for a principal sum, in excess of the jurisdictional amount, and the defendant. proved a set-off, the exact amount of which plaintiff did not know Cotton Oil Co., 190 U. S. 540, 47 L. In Hayne v. Woolley, 180 Fed. 573, which was an action for damages by trespass in allowing cattle to run at large upon the plaintiff's land during the fall and winter season, the court held that the damages could not amount to more than $200 or $300, saying: "The damage in this respect, if any, would be very slight. It is a matter of common knowledge that, in many instances, land is improved, rather than damaged, by permitting cattle to run upon it." See infra, § 7. 42 Peeler v. Lathrop, 48 Fed. 780, 1 C. C. A. 93, 2 U. S. App. 40; Washington County V. Williams, 111 Fed. 801, 49 C. C. A. 621. Put-in-Bay Waterworks &c. Co. v. Ryan, 181 U. S. 409, 45 L.ed. 927; Re Cleland, 218 U. S. 120, 54 L. ed. 962; Brent v. Chas. H. Lilly Co., 202 Fed. 335; Armstrong v. Walters, 223 Fed. 451; Garrett v. Mallard, C. C. A., 238 Fed. 335; Central Commercial Co. v. JonesDusenbury Co., C. C. A. 251 Fed. 13. 43 Western Union Tel. Co. v. Arnold (Texas, 1903) 77 S. W. 249; affirmed, 79 S. W. 8. 44 Columbia Law Review, March, 1904; citing Martin v. Goode, 111 N. C. 228, 32 Am. St. Rep. 799; Bank of Arapahoe v. David Bradley & Co., C. C. A., 72 Fed. 867. |