Singer v. Singer

122 Tenn. 671

• Court: Tennessee Supreme Court
• Decided: December 15, 1909
• Status: Published

Opinion

Mr. Justice McAlister

delivered the opinion of the Court.

This cause was before the court on a former day of the term, and was dismissed for want of jurisdiction. We have been presented with a very earnest petition to rehear the case.

Tbe action of tbe court in dismissing tbe appeal was based on tbe ground that tbe jurisdictional amount involved was less than $1,000, and that tbe appeal should have been prosecuted to tbe court of civil appeals.

Section 7 of tbe act creating tbe court of civil appeals (Acts 1907, c. 82) provides':

“That tbe jurisdiction of said court of civil appeals shall be appellate only, and shall extend to all cases brought up from courts of equity or chancery courts, except eases in which tbe amount involved, exclusive of costs, exceeds one thousand dollars.”

Tbe appellants were petitioners in tbe suit of J. F. Singer et al. v. W. H. Singer et al., pending in tbe chancery court of Davidson county, and involving tbe administration of tbe estate of Mrs. Christine Singer, deceased.

Mrs. Singer died in Davidson county in 1905, leaving a will, in which tbe complainant, J. F. ..Singer, was tbe sole legatee and devisee.

Tbe other children, W. H. Singer and a daughter, Mrs. Harding, contested tbe will of their mother, Mrs. Christine Singer, in a suit commenced in tbe circuit court of Davidson county. W. H. Singer employed several laivyers in tbe prosecution of that suit, with whom be bad specific contracts. He contracted in writing to pay Mr. Jno. L. Nolen twenty per cent of any recovery in tbe case, Mr. James S. Pilcher twenty-five per cent, and to Mr. W. H. Cooper be agreed to pay $500, and be declared a lien on any amount be might recover in favor of said attorneys for tbeir respective fees.

Such proceedings were bad in the will contest, that the will was set aside. Petitions were then filed by the several attorneys in the suit pending in the chancery court for the administration of the estate of Mrs. Christine Singer, for. the purpose of subjecting the interest of W. H. Singer in the estate of his mother to the payment of their fees. The interest of W. H. Singer in his mother’s estate amounted to about $4,000.

A reference was ordered to the master to take proof and report the amount due the several petitioners on account of fees.

The master, on proof offered, reported the following amounts as reasonable compensation for said counsel:

J. S. Pilcher ..'.$350.00

John L. Nolen . 500.00

W. H. Cooper . 150.00

Exceptions were filed by all parties to the report, which were overruled, and the report was confirmed by the chancellor, whereupon each party appealed to to this court, and has assigned errors.

It is insisted on behalf of the administrator of John L. Nolen that he is entitled to a recovery of at least $800, being twenty per cent of the interest of W. H. Singer in his mother’s estate. Mr. James S. Pilcher claims a fee of $600, and Mr. W. H. Cooper a fee of $500.

It will be observed that tbe amount claimed by each party individually is less than $1,000, but tbe aggregate amount of tbe fees claimed would exceed that amount.

Tbe several petitions were consolidated in tbe court below and beard together, and a decree pronounced in favor of each attorney for tbe amount allowed by tbe clerk and master, and tbe receiver was directed to pay said amounts out of any funds in bis bands belonging to tbe said W. H. Singer.

An appeal was prayed and prosecuted by each party severally from tbe decree of tbe chancellor to this court. It is earnestly insisted on behalf of appellants that this court has jurisdiction of tbe appeal for two reasons:

First. That tbe aggregate amount of petitioners’ claims exceeds $1,000; and

Second. Said fees are chargeable on a fund in tbe chancery court amounting to $4,000.

In view of tbe earnest petition to rehear this case on tbe question of jurisdiction and tbe importance to tbe parties of having tbe matters in controversy settled as early as possible, we have not only examined tbe authorities cited in support of tbe petition to rehear on tbe question of jurisdiction, but likewise a large number of cases presenting analogous questions.

In Seaver et al. v. Bigelow, 5 Wall., 208, 18 L. Ed., 595, it appears that Seaver and others bad filed a creditors’ bill against tbe defendants, and a decree was entered dismissing tbe bill. On appeal to tbe supreme court the question arose as to whether or not the supreme court had jurisdiction on account of the fact that none of the several complainants had a claim equal to $2,000, notwithstanding that the sum of the several claims was largely in excess of said sum of $2,000. The court, speaking through Mr. Justice Nelson, said in part as folloAvs:

“The judgment creditors who have joined in this bill have separate and distinct interests, depending upon separate and distinct judgments. In no event could the sum in dispute of either party exceed the amount of their judgment, which is less than $2,000. The bill being dismissed, each fails in obtaining payment of his demands. If it had been sustained, and a decree rendered in their favor, it would only have been for the amount of the judgment of each. . . .

“It is true the litigation involves a common fund, which exceeds the sum of $2,000; but neither of the judgment creditors has any interest in it exceeding the amount of his judgment. Hence, to sustain an appeal in this class of cases, where separate and distinct interests are in dispute of an amount less than the statute requires, and where the joinder of parties is permitted by the mere indulgence of the court, for its convenience, and to save expense, would be giving a privilege to the parties not common to other litigants, and which is forbidden by law.”

In Ballard Paving Co. et al. v. Mulford et al., 100 U. S., 147, 25 L. Ed., 591, it appeared that a bill in equity was brought by the paying company against Mandle and many other persons, who claimed to be the purchasers “from Mandle of certain certificates of the auditor of the board of public works of the District of Columbia, which it was alleged were the property of the paving company.”

Mr. Chief Justice Waite, delivering the opinion of the court, said:

“Mulford and Campbell, the appellees, were two of the defendants, but they were proceeded against as holders of separate and distinct certificates. Their liability as set forth in the bill was several only. There was no pretense of a joint obligation, and it is conceded that in no event could there be a recovery against either of them separately for more than $2,500.'

“We think it clear that we have no jurisdiction in this case. Although many defendants have been brought into this suit, the proceeding is, in fact, against each of the several purchasers to enforce his separate and distinct liability. It is a joinder of distinct causes of action against distinct parties'. The same decree is to be entered against each as in the case of separate suits. The recovery, if any, must be against each defendant separately for the amount he may personally be found accountable. Such being the case, the value of the amount in dispute with each defendant must be the sum for which he is separately liable. It is well settled that neither codefendants nor cocomplainants can unite their separate and distinct interests for the purpose of making up tbe amount necessary to give ns jurisdiction on an appeal. ... In sucb cases tbe appeal of each separate defendant or complainant must stand or fall according as bis own interest in tbe controversy exceeds or falls short of our jurisdictional amount. Tbe same principle applies here. For tbe purposes of an appeal, each separate controversy must be treated as a separate suit. Under this appeal, two separate controversies have been brought here, and in neither is tbe amount involved sufficient to give us jurisdiction.”

In Russell v. Stansell, 105 U. S., 303, 26 L. Ed., 989, it appeared that Stansell bad obtained a decree against a certain levee board for $71,634.67, and, being unable to collect bis decree, instituted proceedings to obtain an assessment and collection of tbe charge which was imposed on tbe lands in tbe district for the payment of said judgment. This assessment was accordingly made, and the landowners thereafter asked an injunction against tbe collection of tbe several assessments that bad been made, alleging various reasons why they should be held illegal. No single individual could in any event be made liable for an amount exceeding $2,500. Tbe injunction having been dissolved, this appeal was taken, and it is now moved to dismiss tbe same by reason of tbe fact that none of tbe parties would be charged with as much as $5,000.

Chief Justice Waite, delivering tbe opinion of tbe court granting tbe motion, said:

“While the appellants and those whom they have been chosen to represent are all interested in the question on which their liability to the appellee depends, they are separately charged with the several amounts asséssed against them. There is no joint responsibility resting on them as a body. Proceeding on the part of the ap-pellee was to require each of the several landowners in the levee district to pay his separate share of the debt that had been established against the district. The recovery was against each owner separately. While the appellants were permitted, for convenience and to save expense, to unite in a petition setting forth the grievances of which complaint was made, their object was to relieve each separate owner from the amount for which he personally or his property was found to be accountable. , . . It is clear that under the rulings . . ., such distinct and separate interests cannot be united for the purpose of making up the amount necessary to give us jurisdiction, on appeal. Although the amount due the appellee from the levee district exceeds $5,000, his claim on the several owners-of property is only for the sum assessed against them respectively.”

In the Matter of the Baltimore & Ohio Railroad Co., 106 U.S., 5, 1 Sup.Ct., 35, 27 L. Ed., 78, it appeared that there had been a collision between a steamer owned by the railroad company and a barge owned by one Maxon, which barge was loaded with grain owned by Moore & Co. Both the barge and the cargo were, injured in the collision, and the owners of each united in a libel to recover damages. Judgments were entered for each of them in amounts which aggregated more than $5,000, but neither of which was as much as $5,000. The railroad company, as owner of the steamer, sought to appeal.

Chief Justice Waite, in delivering the opinion of the court, said:

“It is impossible to distinguish this case in principle from Oliver v. Alexander, 6 Pet., 143 [8 L. Ed., 349]; and Stratton v. Jarvis, 8 Pet., 4 [8 L. Ed., 846]; Spear v. Place, 11 How., 522 [13 L. Ed., 796], and Rich v. Lambert, 12 How., 347 [13 L. Ed., 1017], under which, for half a century, it has been held that when, in admiralty, distinct causes of action in favor of distinct parties growing out of the same transaction, are united in one suit, according to the practice of the courts of that jurisdiction, distinct decrees in favor of or against distinct parties cannot be joined to give the court jurisdiction on appeal [citing cases].

“The case of Shields v. Thomas, 17 How., 4 [15 L. Ed., 93]; Market Co. v. Hoffman, 101 U. S., 112 [25 L. Ed., 782], and The Connemara, 103 U. S.. 754 [26 L. Ed., 322], relied on in support of the present application, stand on an entirely different principle. There the controversies wrere about matters in which the several claimants were interested collectively under a common title. They each had an undivided interest in the claim, and it was perfectly immaterial to their adversaries how tbe recovery was shared among them. If a dispute arose about the division, it would be between the claimants themselves, and not with those against whom the claim was made. The distinction between the two classes of cases was clearly stated by Chief Justice Taney in Shields v. Thomas, and that case was held to be within the latter class. It may not always be easy to determine the class to which a particular case belongs, but the rule recognizing the existence of the two classes has long been established.”

In Farmers’ Loan & Trust Co. v. Waterman, 106 U. S., 265, 1 Sup. Ct., 131, 27 L. Ed., 115, there had been a foreclosure suit against a certain railroad company, and in a decree the master was ordered to report all claims against said railroad. There were many of these claims, but of them only fourteen were for sums in excess of $5,000. Certain claims, being less than $5,000, were allowed by the court, and, on an appeal being taken by the trustee to the supreme court of the United States, a motion to dismiss for lack of jurisdiction was made. Chief Justice Waite again delivered the opinion of the court granting the motion, and among other things said:

“Our jurisdiction, therefore, depends on the case as it stands between the purchasing committee and the several back-pay claimants. As we have shown at the present term in Ex parte Railroad Co., if distinct causes of action in favor of distinct parties, though growing out of the same transaction, are joined in one suit, and distinct decrees are rendered in favor of the several parties, these decrees cannot be joined to give ns jurisdiction; but if the controversy is about a matter in which several parties are interested collectively under a common title, and in the decree, after establishing the common right, a division is made among the claimants according to their respective interests, this separation of a decree into parts will not prevent an appeal.

“We are satisfied the present case comes under the first division of this rule. ... A recovery by one claimant will not necessarily involve a recovery by another. While the rights of all depend on establishing a liability of the purchasers for the payment of debts of a particular kind, no one can recover unless he shows that there is owing to him individually a debt of that kind. There are, therefore, necessarily in the case as many separate and distinct controversies as there are claimants and interveners. The purchasers have the right to contest each claim separately. . . . The amount of the recovery by one is not affected in any manner by what is allowed to another. Clearly, therefore, distinct causes of action in favor of distinct parties have been joined in the same suit, and distinct decrees rendered in favor of the distinct parties.”

In Hawley v. United States, ex rel., 108 U. S., 556, 2 Sup. Ct., 846, 27 L. Ed., 820, certain owners of separate judgments against Lee county had joined in a manda-mos against the tax assessor, réquiring him to levy a tax sufficient to pay their several judgments, which writ was duly awarded, and the assessor appealed.

Said Chief Justice Waite:

“We are met at the outset with a motion of the defendants in error to dismiss the writ in this case on the ground that the several judgments proceeded upon below cannot he united to give us jurisdiction and the amount due on any one of them does not exceed $5,000. The rule is settled, as stated more than once, at the present term, that when distinct causes 'of action in favor of distinct parties are united in one suit, and distinct judgments are rendered for or against the several parties, their judgments cannot be joined to give us jurisdiction. ... In the present case distinct causes of action in favor of distinct parties were united, for convenience and to save expense, in one suit, and distinct orders were made in favor of each one of the several judgment creditors. ... In the present case the amount due relators, Fairbanks and Thomas, respectively, does not exceed $5,000. As to them, consequently, the writ must be dismissed.”

In Tupper v. Wise, 110 U. S., 398, 4 Sup. Ct, 26, 28 L. Ed., 189, suit was brought by Wise against several persons to recover possession of certain lands. Tupper answered, denying that he was in possession of all the' land described, but setting up claim to a small portion thereof. Another of the defendants made the same answer, but set up claim to another and different portion of the tract; each defendant claiming a separate and distinct interest in a separate and distinct part of the land. Judgment was rendered against each for that part of tbe land which each claimed. The value of neither of these portions was as much as $5,000, but together they aggregated more than that sum. Chief Justice Waite said as follows:

“This motion is granted. The rule is well settled that distinct judgments in favor of or against distinct parties, though in the same record, cannot be joined to give this court jurisdiction. . . . The stipulation as to the value of the property which is found in the record cannot alter the case, for it states that the aggregate value of the two quarter .sections exceeds $5,100, and the verdict fixes the value of each quarter at $3,-000.”

In Fourth Nat. Bank of St. Louis v. Stout, 113 U. S., 684, 5 Sup. Ct., 695, 28 L. Ed., 1152, there was a suit in equity by certain judgment creditors of a mill company to recover from the bank their pro rata share of certain property of said company which was in the hands of the bank. The bank claimed said property by virtue of a superior right, and upon the hearing decrees were entered in favor of six of the creditors, the aggregate of whose claims was in excess of $5,000, but no one of which equaled said amount. The bank appealed, and on motion to dismiss Chief Justice Waite said:

“The appellees have separate and distinct decrees in their favor, depending on separate and distinct claims. If none of the other creditors had intervened, and the decree had been rendered in favor of Stout, Mills, and Temple alone, upon their bill as filed, in which they sought to recover only their pro rata share of the assets of their debtor in the hands of the bank, it certainly could not be claimed that an appeal would lie if their recovery was for less than $5,000. The suit was instituted, not for the whole property in the hands of the bank, but only for the complainants’ pro rata share. After the suit was begun the intervening creditors were allowed to come in each for his separate share of the assets. On their intervention the case stood precisely as it would if each creditor had brought a separate suit for his separate share of the fund. The decree in favor of the several creditors has precisely the same effect, for the purpose of an appeal, that it would if rendered in such separate suits.”

In Henderson v. Wadsworth, 115 U. S., 264, 6 Sup. Ct., 140, 29 L. Ed., 377, the subject is again investigated at some length by Mr. Justice Wood, wherein he refers to the cases heretofore cited, and differentiates the cases of Shields v. Thomas, 17 How., 3, 15 L. Ed., 93; Market v. Hoffman, 101 U. S., 112, 25 L. Ed., 782; The Connemara, 103 U. S., 754, 26 L. Ed., 322; The Mamie, 105 U. S., 773, 26 L. Ed., 937, and Davies v. Corbin, 112 U. S., 36, 5 Sup. Ct, 4, 28 L. Ed., 627, some of which have been cited in the brief of appellants for the proposition that the two claims of Pilcher and Nolen may be added together for the purpose of conferring jurisdiction of this appeal upon this court. In addition to the cases above referred to, the opinion of Mr. Justice Brown, in the case of New Orleans Pac. Railway Co. v. Parker, 143 U. S., 42, 12 Sup. Ct., 364, 36 L. Ed., 66, contains an interesting review of some of tbe cases heretofore referred to, where it was again held that “if several plaintiffs claim under the same title, and the determination of the cause necessarily involves the validity of that title, this court has jurisdiction as to all such plaintiffs, though the individual claims of none of them exceed $5,000.”

The cases of Overby v. Gordon, 177 U. S., 214, 20 Sup. Ct., 603, 44 L. Ed., 741, and McDaniel v. Traylor, 196 U. S., 415, 25 Sup. Ct., 369, 49 L. Ed., 533, furnish later illustrations of that class of cases where separate claims each under $5,000, may be joined for the purpose of conferring jurisdiction upon the supreme court of the United States, on the ground that each of several said joined claimants derives his title from the same source; an adjudication as to one being necessarily an adjudication as to all.

The first of said last-named cases was a will contest, had in the District of Columbia, relative to certain personal property of the decedent of the value of about $10,000, all of which was situated in the District of Columbia. The controversy having been decided against the contestants in said proceeding, they appealed to the supreme court of the United States, where a motion to dismiss was made upon the ground that no one of the appellants had an interest in said estate that was as much as $5,000. Mr. Justice White, speaking for the court, said:

“In the case at bar, the contestants below sought, not an allotment to them of their interest, if any, in the estate, but an adjudication that the alleged last will and testament possessed no validity, and that contention was advanced by virtue of a claim of common title in the interest of kin of the decedent to the corpus; such title, if any, being derived from the law of the alleged domicile of the deceased. In this aspect the amount of the estate was the matter in dispute. . . . There is, therefore, no merit in the objection to the exercise of jurisdiction.”

A like conclusion was reached in McDaniel v. Traylor, supra, in a lengthy opinion delivered by Mr. Justice Harlan.

The case of Morgan v. Adams, 211 U. S., 627, 29 Sup. Ct., 213, 53 L. Ed., 362, was also a case in which it was held that, on appeal from a judgment, the validity of a certain will, the matter in dispute was the aggregate value of the alleged legacies in favor of the appellants.

The case of Tupino v. Compania General de Tabacos, 214 U. S., 268, 29 Sup. Ct., 610, 53 L. Ed., 992, is the latest case wherein this question is discussed by the supreme court of the United States. In that case suit was instituted for the recovery of certain lands by the defendant in error against some 84 persons. The defendants did not claim, nor was it alleged, that they were joint tenants of the entire premises; but the allegation was that each one' of said defendants claimed to be the separate owner of a distinct piece of the land sned for. Tbe aggregate value of all tbe pieces of land was in excess of tbe jurisdictional amount, to wit, $25,-000; but no single one of said parcels equaled that amount. Judgment was entered in favor of tbe plaintiff, and tbe several defendants appealed to tbe supreme court of tbe United States, where motions to dismiss were made upon tbe ground that tbe matter in dispute did not equal $25,000. Among other things Mr. Justice Moody said as follows:

“It is very clear, although tbe plaintiff claimed under a single title all tbe land occupied separately by tbe various defendants, that tbe action itself was not against tbe defendants as joint disseisors, but was an action against each of them separately as tbe bolder of a distinct parcel or parcels of land. There was no allegation, in either tbe complaint or tbe answer, of joint ownership or joint possession, or joint action of any kind. Tbe proceeding in effect consisted of eighty-four separate and distinct actions against tbe eighty-four defendants. Tbe complaint alleged, that each defendant was in possession of a separate and distinct parcel of land, described separately, however inadequately. Tbe answer of each defendant, while denying in tofo tbe title of tbe plaintiff, in other respects related solely to tbe tract of land alleged to be unlawfully held by that particular defendant. ... But where the pleadings show that there was no allegation of joint ownership or joint possession, and that tbe controversy with each defendant related to a separate and distinct lot of land, and the judgment Is rendered separately against the defendants, then the measure of jurisdiction on appeal or writ of error is not the value of the whole land, but the value of each part separately. Tupper v. Wise, 110 U. S., 398 [4 Sup. Ct., 26], 28 L. Ed., 189, where it was said: ‘The rule is well settled that distinct judgments in favor of or against distinct parties, though in the same record, cannot be joined to give this court jurisdiction.’

“We think that the case at bar falls within the rule of Tupper v. Wise. It appears in point of fact that the value of the whole land which the plaintiff sought to recover in separate parcels from the eighty-four defendants exceeds-$25,000. But it appears that the value of the land in controversy with any one of the defendants is far less than $25,000.”

In the case of Farwell v. Becker, 129 Ill., 261, 21 N. E., 792, 6 L. R. A., 400, 16 Am. St. Rep., 267, the facts were that Earwell Company, Becker, and Eisen & Co., were creditors of Olquist Bros., a firm which became insolvent and made certain stock transfers, which were claimed to be fraudulent, and against which certain attachment suits were brought. The goods so attached were sold, and realized enough to .pay the claims of Farwell and Becker. Thereafter trespass suits were brought by the parties who purchased the goods from Olquist Bros., against the sheriffs who made the levies, and judgments were recovered, which judgments were paid by Farwell & Oo. They thereupon brought this bill to compel Becker and Shirk to contribute pro rata to the amount they had paid out. Decrees were entered, requiring Becker to pay something in excess of $5,000, and requiring Shirk to pay something oyer $500. Appeals were duly taken. Says the court:

“We think it is plain that this court has no jurisdiction, so far as the defendant Shirk is concerned. Although two parties were made defendants to the bill, the action is against each defendant to enforce a separate and distinct liability. The claim relied upon was separate as to each defendant, and so was the recovery. Shirk was in no manner connected with Becker as to the claim against him, nor was Becker in any manner liable as respects the claim against Shirk. Where the amount against each 'defendant is separate and distinct as is the case here, the two amounts cannot be united so as to confer jurisdiction, but each must be treated as a separate suit; but if the amount involved as to either one is not large enough to confer jurisdiction the appeal must fail.”

In Spangler v. Green, 21 Colo., 505, 42 Pac., 674, 52 Am. St. Rep., 259, the court said:

“The objection interposed by appellees to the jurisdiction of this court to entertain the appeal must first be disposed of before considering the assignments of error. Section 1, p. 118, Sess. Laws 1891, provides that no appeal to the supreme court shall lie to review the final judgment of any inferior court unless the judgment exceeds $2,500, exclusive of costs. ... To warrant the assumption of jurisdiction, the amount of the judgment in a case like the one at bar, must be determined by the amount of the judgment in favor of each lien claimant, and not the aggregate amount of the several judgments; and, as neither of the several judgments here amounts to $2,500, jurisdiction on this ground does not attach.”

The cases especially relied on by counsel for appellants are Davies v. Corbin, 112 U. S., 36, 5 Sup. Ct., 4, 28 L. Ed., 627, and Washington Market Company v. James A. Hoffman, 101 U. S., 112, 25 L. Ed., 782.

In Davies v. Corbin, supra, it was held that “in proceedings for a peremptory writ of mandamus to compel a tax collector to collect a tax which has been levied for the joint benefit of all the relators, and in which they have a common and undivided interest, the value of the matter in dispute is measured by the whole amount of the tax, and not by the separate parts into which it is to be divided when collected, and where the whole amount of tax is more than $5,000, the court has jurisdiction on writ of error.”

In that case a motion was made to dismiss the writ of error on the ground that the value of the matter in dispute does not exceed $5,000, inasmuch as no one of the relators Avill be entitled to receive of the tax collected so much as $5,000, and no one single taxpayer will be required to pay that amount of tax.

The court said as follows: “They have a common interest in the tax, and it is perfectly immaterial to the tax collector bow it is divided among them. He bas no controversy with, them on that point; and if there is any difficulty as to the proportions in which they are to share the proceeds of his collections, the dispute will be among themselves, and not with him. He cannot act upon separate instructions from the several creditors. His duty is to collect the tax for the benefit of all alike. A payment of the judgment of one creditor would not relieve him from his obligation to collect the whole tax. The object of the proceeding is, not to raise the sums due the relators, but to raise the whole tax of ten mills on the dollar. As the matter stands, each relator has the right to have the Avhole tax collected for the purpose of distribution among all the creditors. It is apparent, therefore, that the dispute is between the tax collector on one side and all the creditors on the other, as to his duty to collect the tax as a whole for division among them, after the collection is made, according to their several shares. . . . It is conceded that the amount of the tax is more than $5,000.”

The case of Washington Market v. Hoffman, supra, involved the same principle as that announced in the last case; but it is obvious that they are wholly inapplicable to a case like the present, where each petitioner is seeking to recover a separate judgment for his' individual fee, and where the amount claimed by each is less than $1,000. This is not the case where judgment creditors are asserting a common right to the whole of a specific fund, and where the jurisdiction of the court is determined by tbe amount of tbe fund in controversy. Tbe jurisdiction of tbis court must be determined in tbe present case by tbe individual controversies, and by the amount each claims tbe right to.'recover.

After a very careful examination of all tbe authorities accessible, we are of opinion this court is without jurisdiction, and our former decree, remanding tbis cause to tbe court of civil appeals, must be reaffirmed.