Schultz v. Holbrook

86 Iowa 569 | Iowa | 1892

Given, J.

1. Appeal aStion!5uns". trovei-sy: eounterelaim. I. The record before us shows that on February 24th the judge trying the ease signed a certificate certifying certain questions of law to-this court for determination. The appellee contends that the amount m contro- . n versy is less than one hundred dollars, wherefore the ease can only be tried in this court upon, properly certified questions of law; and that, as the certificate was not signed by the judge until four Jays-after the judgment was rendered, the appeal must be dismissed. The appellant contends that the amount in controversy, as shown by the pleadings, is in excess of one hundred" dollars, and that his appeal lies independent of the certificate.

The amount in controversy is to be determined by the pleadings. The answer must be taken as admitting the plaintiff’s claim, as the relief asked is that the counterclaim shall be first applied in discharge of the-plaintiff’s claim; hence the pleadings do not show any controversy as to the plaintiff’s claim. While it is true the answer demands judgment on the counterclaim for four hundred and fifty-seven dollars and eighty-seven cents, under the contract, yet, if it shows upon its face-that this claim is barred, then it cannot be said that this amount claimed is in controversy. The last, installment under the contract became due October 21,. 1874, and whatever right of action the plaintiff had to recover the installments then accrued, and, being upon ■a written contract, became barred in ten years, except when pleaded as a counterclaim, as provided in section '2540 of the Code. The answer shows upon its face that the cause of action for the installments accrued October 21,1874, and alleges no facts that stopped the running of the statute. Consequently it became barred October 21, 1884. As part of the plaintiff’s account accrued prior to October 21, 1884, the defendant was entitled to offset it with an equal amount that might be due him under the contract, but he was not entitled to have judgment for any balance; and, therefore, according to the answer, the only amount in controversy upon the counterclaim was the amount necessary to offset the plaintiff’s claim: namely, forty-six dollars with interest at six per cent, from February 20, 1886. We are of the opinion that the pleadings fail to show that the amount in controversy did exceed one hundred dollars.

2. -: -: -:certificate: ' time of fiimg. II.' It will be observed, as already stated, that the judgment was rendered on the twentieth day of February, 1891, and that the certificate was not signed by the trial judge until the ¿ay 0f February, following. This court has repeatedly held that the certificate must be made and filed at the time of the rendition of judgment, and that it is not sufficient that it be done after, even at the same term. Foye v. Walker, 62 Iowa, 251; Lomax v. Fletcher, 40 Iowa, 705; Hirshfield v. Bank, 39 Iowa, 699; Nicely v. Rogers, Id. 441.

It follows from these conclusions that the appeal must be dismissed.