Griffin v. McDaniel

63 Miss. 121 | Miss. | 1885

Cooper, C. J.,

delivered the opinion of the court.

The writing sued on is, in terms and effect, a contract of indemnity, and the extent of the right of the appellees is to recover so much from the appellant as they were required to pay by reason of their suretyship for Wilson, the delinquent guardian. The extent of the guardian’s liability was fixed by the decree of the chancery court, and all of it paid by the guardian, except the sum ■of one hundred and thirty-four dollars and seventy cents, which was paid by the sureties. The amount of their liability as fixed by the chancery court (and by the contract the sum so adjudged by that court was to govern the rights of the parties), is not now, nor was it at any time uncertain, and it is the measure of the right of the appellees against the appellant.

The rule announced in Fenn v. Harrington, 54 Miss. 733, has no application except in those cases in which the pleadings show that the cause is within the jurisdiction of the court, but the value of the property, the extent of the injury, or the sum actually due, in actions of assumpsit, is found by the jury to be without the jurisdiction of the court. In such cases, where the plaintiff honestly believes and contends for the recovery sought by him, there is a “ controversy ” between the parties over the amount demanded by the plaintiff, and this fixes the jurisdiction; but where, as in this case, there is no uncertainty as to how much the plaintiff may recover, if he recovers at all, he cannot give jurisdiction to the court by fixing the ad damnum at a sum not warranted by the cause of action.

The judgment is reversed, and the suit dismissed for want of jurisdiction in the circuit court.