Lamb v. Thompson

112 Va. 134 | Va. | 1911

Harrison, J.,

delivered the opinion of the court.

*135The sole question before the circuit court in this case was whether the appellants or the appellee, Thompson, should bear the loss occasioned by the failure of the appellants to. present to the Charlotte Banking and Insurance Company for payment, before it suspended business, a certain certified check for $300.

The circuit court held that the check was accepted and treated by the appellants as a cash payment on the appellee’s purchase of land from them, and that by reason of their failure to present the check for payment in a reasonable time they should bear the loss caused by the failure of the bank. From this decree the present appeal was taken.

The first question to be determined is whether or not the amount involved is sufficient to give this court jurisdiction.

It will be observed that the decree of the circuit court does not fix a liability for $300 upon the appellants. It declares, in effect, that they are the owners of the certified check for $300 which the record shows they still hold, that their only source of satisfaction is the bank upon which that check was given, and that they should bear the loss of such portion of the check as the bank did not pay, because of their negligent failure to present the check for payment within a reasonable time. When the decree complained of was entered, holding that the appellants were the owners of the check, they, eo instanti, became the owners of the interest represented by that check in the fund in the hands of the receivers of the bank for distribution among the bank’s creditors. The smallest dividend on this check would reduce the loss suffered by appellants below the amount necessary to give this court jurisdiction.

On appeal, the value or amount in controversy must, as a general riile, be made to appear affirmatively, and, if it cannot be ascertained, the appeal will be dismissed, as the burden is on the appellant to establish jurisdiction. Williamson v. Payne, 103 Va. 551, 49 S. E. 660.

*136The record is silent as to the amount of the loss the appellants have suffered by reason of their failure to present the check for payment. Where this is the case, affidavits inay be filed in this court showing the real amount in controversy. Wells v. Wilkins, 116 U. S. 393, 29 L. Ed. 671, 6 Sup. Ct. 601; Same v. Same, 118 U. S. 230, 30 L. Ed. 210, 6 Sup. Ct. 1049.

' The appellee has filed here an affidavit by the receivers of the bank, after notice to opposing counsel, from which it appears that dividends have been declared on the claim represented by the check for $300, held by appellants, aggregating $112.50, and that there has been tendered to the appellants that amount, which they have declined to receive pending this appeal. The $112.50 since tendered appellants was, under the decree appealed from, as much the property of appellants at the time that decree was entered as it was when the receivers of the bank were ready to distribute the fund in their hands, and it shows that the loss sustained by the appellants, under the decree, because óf their failure to present the check for payment, was only $187.50, far below the amount necessary to give this court jurisdiction.

This appeal must, therefore, be dismissed as improvidently awarded.

Appeal Dismissed.