Pennington v. Richie

57 So. 220 | Miss. | 1911

Smith, J.,

delivered the opinion of the court.

Appellee sued out an attachment agáinst appellant and -one R. B. Rocldiold for -the sum of seventy-five dollars for rent in arrears alleged to be due him as landlord. The writ was by the constable levied upon certain agricultural products, valued by Mm at the sum of forty-seven dollars and eighty cents. Appellant replevied the property under the provisions of section .2856 of the Code, and in due course appeared and prosecuted his -claim in the court of the justice of the peace who issued the writ. ■ The trial in that court having resulted in' favor of the landlord, the cause was appealed to the circuit court, wherein the verdict of the jury was as follows: “We, the jury, find for the plaintiff, that the attachment was rightfully sued out.” Upon this verdict a judgment was entered directing appellant to restore the property replevied by him, and, in default thereof, that appellee recover of him and his sureties the sum of forty-seven •dollars and eighty cents, the value of the property as shown by the return of the constable upon the attachment writ. The ground of the motion to dismiss is that, according to the judgment rendered, the amount in controversy is only forty-seven dollars and eighty cents, and that consequently an appeal does not lie from the judgment of the court below.

In Biddle v. Paine, 74 Miss. 498, 21 South. 250, it was held that the test of the jurisdiction of this court in cases of this character is the amount distrained for as fixed by the judgment of the court below. In the case at bar this amount was not fixed by the judgment; the verdict being wholly silent as to that feature of the case. Where this amount is not fixed by the verdict and judgment, the only way the amount in controversy can be ascertained is from the affidavit in attachment, the amount for which the landlord might have obtained judgment. Schlicht v. Callicott, 76 Miss. 487, 24 South. 869.

As the amount alleged in the affidavit is seventy-five dollars, the motion to dismiss is overruled. ■

Overruled.