52 Kan. 691 | Kan. | 1894
Lead Opinion
The opinion of the court was delivered by
This is a petition in error, by which it is sought to review the action of the district court of Rush county on
“No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars ($100), except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court, trying the case involving less than one hundred dollars ($100), shall certify to the supreme court that the case is one belonging to the excepted classes.”
This case does not fall within any exception. It was held by this court, in the case of Martin v. Shrubshall, decided in April, 1893, on a motion to dismiss, that this court had no jurisdiction in a case like that now before us, even though the amount of costs involved exceeds $100. No opinion was written in that case. The language of the statute seems to be clear, and the amount of costs is unimportant. We perceive no sound reason for holding that a petition in error may be entertained to review an order of the court made on a motion to retax costs, when the statute expressly takes away jurisdiction to review the merits of a case involving less than $100, no matter how much the costs may be. The petition in error will therefore be dismissed.
Dissenting Opinion
dissenting: Where the costs are merely incidental to the action in the trial court, they cannot, of course, be considered as a part “of the amount or value in controversy” for the purpose of giving jurisdiction in this court. But where the costs, as here, form the subject-matter of the controversy in the court below, I think a different rule ap