Blank v. Powell

75 P. 486, 68 Kan. 556, 1904 Kan. LEXIS 143

• Court: Supreme Court of Kansas
• Decided: February 6, 1904
• Docket: No. 13,511
• Status: Published

Opinion

The opinion of the court was delivered by

Atkinson, J. :

This is an action in replevin brought 'in the district court of Lyon county by Lewis Powell against John W.’ Blank to recover the possession of certain cattle, of the aggregate value of $300. In the spring of 1901 Powell entered into a contract with Blank, whereby the latter agreed to pasture cattle belonging to the former for the pasture season of that year at' an agreed price per head. In the fall following, at the close of the pasture season, a controversy arose between the parties, Blank claiming of Powell the sum of $51.50, of which sum $5 was for the pasturing of cattle owned by one Charles Moss, the payment of which' Blank claimed Powell guaranteed, and which liability the latter denied; but he admitted owing Blank the sum of $46.50 for the pasture of cattle, less $30, the value of a cow belonging to him which a Mr. Jones had been permitted to take from the pasture under the mistaken belief that the cow taken belonged to Jones. Blank denied his liability to Powell for the value of the cow taken by Jones. Powell then tendered to Blank the sum of seventeen dollars, and demanded possession of his cattle. Blank refused to surrender them, claiming the right to the possession of the cattle under an agistor’s lien. Powell brought his action in replevin, and upon the trial was given a verdict awarding him the immediate possession of the cattle. Blank brings the case to this court for review, assigning error in the court below.

PowelL filed his motion to dismiss the case, challenging the jurisdiction of this court, claiming .that the amount in controversy in this court is less than $100. There is no dispute that the cattle were owned by Powell and that the claim of Blank was one not of ownership in the cattle, but for possession only, to satisfy a lien for $46.50, or at most $51.50. We believe the motion should be sustained. So far as the plaintiff in error, Blank, is concerned, the amount in controversy is the amount for which he claimed a lien upon the cattle. (2 Cyc. 580; Frost v. Rowan, 56 S. W. [Ky.] 427; Mohme v. Livingston, 54 Iowa, 458, 6 N. W. 717; Stinson v. Cook, 53 Kan. 179, 35 Pac. 1118.)

The appellate jurisdiction of the supreme, court cannot be exercised in any civil ■ action unless the amount or value in controversy, exclusive .of costs, exceeds $100, except in certain cases, and the. present case does not come within any of the. exceptions. (Gen. Stat. 1901, §5019; Coal Co. v. Barber, 47 Kan. , 27 Pac. 114; Loomis v. Bass, 48 id. 26, 28 Pac. 1012 ; Skoin v. Limerick, 50 id. 465, 31 Pac. 1051.)

The claim of Blank could have been discharged at any time by payment of the amount for which he claimed a lien against the cattle. As there is no jurisdiction to review the case, it will be dismissed from this court.

All the Justices concurring.