137 Ind. 421 | Ind. | 1894
The appellant sued the appellee in the court below to recover an alleged balance of $3,503.05 in his hands which he is charged with failing to pay over, as the outgoing treasurer of said county, to his successor in said office.
Appellee answered that the cause of action did not accrue within six years before the commencement of the action. The plaintiff replied, “That during said defendant’s term of office he undertook, as required by law, to keep an account and ledger of all receipts and disbursements of money received and paid out by him during his term of office, and which accounts and ledger, and the balances therein shown, were the accounts and balances to be, and were the ones used, by defendant and said board in making their annual settlements, and which were the ones used to determine the amount of balance of money in the hands of such treasurer, which he was required to pay over to his successor in office;
A demurrer to this reply was sustained, and plaintiff, failing to plead further, appellee had judgment upon the demurrer.
The assignment of this ruling for error is the only question presented by the record for our consideration.
The complaint, as we have construed it, seeks to recover a money judgment for more than $3,500, and, therefore, prima facie, presents a case within the jurisdiction of this court.
The answer setting up the statute of limitations makes a complete bar to the whole complaint, being a confession and avoidance.
The circuit court held, in sustaii 'ug the demurrer to this reply, that it failed to state facts enough to avoid the statute even as to that sum, and judgment went upon the demurrer in effect that the whole cause of action set up in the complaint was barred by the statute of limitations, because the confession in the reply admitted that fact so set up in the answer without avoiding it. That ruling is the. only error assigned. And the only question presented by such assignment is whether the reply sufficiently avoids the answer as to so much of the complaint as amounts to the sum of $1,960.
If we should hold, as appellant seeks to have us do, that the reply does sufficiently avoid the answer as to so much of the complaint as amounts to said sum of $1,960, then that would result in a reversal of the judgment below, and would enable the appellant to recover on the complaint, on proper proof, said sum of $1,960, and no more.
If we should hold, on the other hand, as the trial court did, that the reply, while confessing the answer, did not state facts sufficient to avoid it, we would simply affirm the judgment. So that it appears that the amount in controversy, in this appeal, is but said sum of $1,960.
The Appellate Court has exclusive jurisdiction in all appeals in actions seeking the recovery of a money judgment only where the amount in controversy, exclusive of interest and costs, does not exceed $3,500. 1 Burns’
R. S. 1894, section 1336.
This court is, therefore, without jurisdiction to decide this appeal. The cause is therefore transferred to the Appellate Court.