Fillmore v. Hintz

57 N.W. 882, 90 Iowa 758

• Court: Supreme Court of Iowa
• Decided: February 6, 1894
• Status: Published

Opinion

Given, J.

I. The first question presented by the record is whether this court has jurisdiction. Code, section 3173, provides: “But no appeal shall be taken in any cause in which the amount in controversy between the parties, as shown by the pleadings, does not exceed one hundred dollars, unless the trial judge shall certify that such cause involves the determination of a question of law upon which it is desirable to have the opinion of the supreme eourt, but this limitation shall not affect the right of appeal in any cause in which is involved any interest in real property.” There is no question but that an appeal would lie from the judgment in favor of the plaintiff against the defendants, but no appeal has been taken from that judgment. The contention is whether the amount in controversy between intervener and plaintiff exceeds one hundred dollars. It is admitted in the petition of intervention that two payments were made upon the two notes of William Peters to intervener, one of two hundred and thirty-five dollars and twenty cents, and one of two hundred and forty dollars, and that, allowing these credits, only fifty-five dollars and fifty-four cents, with [interest, remains unpaid. It is for this amount that intervener asks judgment, and that the notes sued upon be held subject to the payment thereof. The notes sued upon 'provide for seven per cent, interest, payable annually, “principal and interest payable at Peterson Bank, Peterson, Iowa.” The petition of intervention shows that, about the time the first year’s interest became due, Mr. Hintz informed plaintiff that he was ready to pay the interest if he could have the same indorsed on the notes, and that plaintiff told him that he did not know where the notes were, whereupon Mr. Hintz deposited the sum of two hundred and thirty-five dollars and twenty cents in said bank in payment of said interest. That afterward Doris Peters, to whom the notes were payable, sent the written order set out to intervener on the bank for said money, and that on said order the same was paid to intervener on account of the indebtedness of William Peters. Intervener concedes that, if it is allowed to retain the two hundred and thirty-five dollars and twenty cents, there is less than one hundred dollars due to it, but contends that, as plaintiff denies the trust alleged by intervener, he is insisting, as against intervener, that he, and not intervener, is entitled to said two hundred and thirty-five dollars and twenty cents; therefore, that that amount is in controversy. It will be observed that intervener admits the receipt of the two hundred and thirty-five dollars and twenty cents, and we think the pleadings fail to show that its right to that amount is questioned by any of the parties to the action. Peters and wife, together with the plaintiff and the defendants, were made parties defendant to the petition of intervention. Neither Peters and wife nor the defendants answered the petition, nor do the áefendants make any claim for a credit on account of the deposit of said two hundred and thirty-five dollars and twenty cents as against the plaintiff, nor ask to recover the same from the intervener. The plaintiff makes no elaim to said two hundred and thirty-five dollars and twenty cents, nor does he deny the right of intervener to keep the same. That payment to intervener was by direct authority from Mrs. Peters, the payee in the notes, and was made on behalf of her husband, and on account of his indebtedness to intervener. Whether this payment of two hundred and thirty-five dollars and twenty cents was made in pursuance of the agreement alleged-by intervener or simply because of the indebtedness of Mr. Peters to intervener, we need not inquire, nor need we inquire as to the reasons for or effect of not allowing this payment as a eredit to defendant Carl .Hintz. Our jurisdiction depends entirely upon whether it is shown by the pleadings that there is an amount in controversy exceeding one hundred dollars. As no one questions intervener’s right to retain this two hundred and thirty-five dollars and twenty cents, which it admits having received, it is entirely clear that the amount in controversy between intervener and plaintiff is much less than'one hundred dollars. It follows from this conclusion that the appeal must be dismissed.

II. Intervener appellant moves to strike all of plaintiffs additional abstract, except the first page and part of the third and ninth pages, and to tax the costs thereof and of appellant’s amendment to abstract, and the costs of the transcript of the evidence, to the plaintiff upon the ground that his additional abstract was unnecessary. While the controlling issue between the intervener and plaintiff was whether the contract alleged by intervener had been made, the facts relating thereto were so blended with, and based upon the facts bearing upon the issues between plaintiff and defendants that it was difficult to abstract the evidence without including that pertaining to the issues between plaintiff and defendants. While the leaning of the abstracter is apparent in both abstracts, we are led to conclude, upon our careful examination of both abstracts and the transcript, that appellant’s abstract was sufficiently full and correct, except as to parts admitted in the motion, and that appellee’s additional abstract, except the first page and half of the third and ninth pages, was unnecessary. The filing of this additional abstract rendered appellant’s amendment and the transcript of the evidence necessary. We think this motion should be sustained, and that the costs of the additional abstract, except as to two pages thereof, and of the appellant’s amended abstract, and the costs of the transcript of the evidence, should be taxed to the plaintiff appellee. Dismissed.