Richmond v. The City of Milwaukie. DEAN RICHMOND, Appellant, v. THE CITY OF MILWAUKIE and another. 21 H. 391. PRACTICE IN SUPREME COURT-AFFIDAVITS. 1. Where the value of the property in controversy is stated in the pleadings or other proceeding in the court below, it is not admissible to prove a different value to affect the jurisdiction of this court. 2. Nor will this court in any case receive affidavits of that character to reinstate a case which has been dismissed because the sum in controversy was less than $2,000. See 2 Miller, 683. Mr. Gillet moved to reinstate the cause on affidavits of value. THE case is stated fully in the opinion. *Mr. Chief Justice TANEY delivered the opinion of the [392] court. This case was dismissed at a former day of the present term, because it did not appear that the value of the property in controversy exceeded $2,000. An affidavit has now been filed on the part of the appellant, stating that the property was worth $2,500; and a motion thereupon made to reinstate the case, to which the counsel for the appellees assent. There are cases-such, for example, as an ejectment, or a suit for dower-in which the value does not, according to the usual forms. of proceeding, appear in the pleadings or evidence in the record. In such cases, affidavits of value have been received here, in order to show that the value is large enough to give jurisdiction to this court. That was the case in Course v. Steadman and others, referred to in the 13th rule of this court. The case is reported in 4 Dall. 22. It was a proceeding to charge a tract of land with a lien created by a judgment; and, as the decree was against the respondent, it was necessary for her to show that the land was worth more than $2,000, in order to support the appeal. The case of Williamson v. Kincaid, referred to in the above-mentioned case, (4 Dall. 19,) was an action for dower. But in both of these cases the affidavits were filed before the argument on the merits; and in Bush v. Parker, (5 Cr. 257,) Mr. Justice Livingston expressed his opinion strongly against giving time to file affidavits of value, and the court refused to continue the case for * that [* 393 ] purpose. And in the class of cases above mentioned, in which affidavits are received, there is no instance in which a case. has been postponed or reinstated, in order to give the party time to produce affidavits of value. Indeed, such a practice would be Porter v. Foley. irregular and inconvenient, and might sometimes produce conflicting affidavits, and bring on a controversy about value, occupying as much of the time of the court as the merits of the case. And if this case were one of those in which affidavits could be received, they come too late after the case has been heard and dismissed for want of jurisdiction. But it is not a case of that description. The value of the lots about to be sold for corporation taxes was involved directly in the dispute. Their value is stated in the bill, and the amount of taxes imposed upon them, in order to show that the overcharge made by the corporation was unreasonable and oppressive; and their value is stated by the complainant to be "over $500"-the sum mentioned being only one-fourth of the amount required to give jurisdiction to this court; and where the value is stated in the pleadings or proceedings of the court below, affidavits here have never been received to vary it or enhance it, in order to give jurisdiction. And the affidavit now offered could not have been received, even if filed before the argument of the case. The motion to reinstate is therefore overruled. JAMES D. PORTER and others, Plaintiffs in Error, v. BUSHROD W. FOLEY. 21 H. 393. JURISDICTION AND PRACTICE IN SUPREME COURT-WRIT OF ERROR DEFECTIVE. 1. The doctrine of the Insurance Co. v. Mordecai, 2 Miller, 740, reaffirmed, to-wit, that a writ returnable on any other day than the first day of the term is fatally defective, and confers no jurisdiction. 2. It can neither be amended here nor remitted to the circuit court for amendment; but, the case being dismissed, the plaintiff may withdraw the record, that it may be used in connection with a new and valid writ. WRIT of error to the court of appeals of Kentucky. Motion to dismiss. The case is stated in the opinion of the court. [* 394] *Mr. Chief Justice TANEY delivered the opinion of the court. The writ of error in this case was issued on the 27th day of December last, and made returnable on the third Monday in January, and the defendant in error cited to appear on that day. It has already been decided at the present term, in the case of Insurance Co. of the Valley of Virginia v. Mordecai, that such a Martin v. Ihmsen. writ of error cannot be supported, and does not bring the case before the court. A motion has been made, on behalf of the plaintiff in error, to remand the case to the court below, with leave to amend the writ of error and citation. But, as the transcript stands, there is no case before us in which we can exercise a power of amendment. We can do nothing more than dismiss it for want of jurisdiction. But if the plaintiff desire it, he may, in order to save expense, withdraw the transcript, and use it in connection with the proper and legal process to bring the case here; and if withdrawn, a receipt for it must be left with the clerk. But as it now stands, it must be dismissed for want of jurisdiction. FRANCIS MARTIN, Administrator, &c., Plaintiff in Error, v. CHRISTIAN IHMSEN. 21 H. 394. PRACTICE IN CIRCUIT COURT OF LOUISIANA-PRESCRIPTION INTERRUPTED BY SUIT FOR SAME CAUSE OF ACTION. 1. Though by the law of Pennsylvania, where the assignment was made, the assignee of an open account cannot maintain an action, he can do so in Louisiana, where the law is otherwise. 2. In the latter State, the running of the time of prescription is interrupted by a suit concerning the matter of the subsequent suit in which prescription is pleaded. 3. An exception to the refusal of a judge, after the term of the court, to sign a bill of exception, is a nullity. WRIT of error to the circuit court for the eastern district of Louisiana. The case is stated in the opinion. Mr. Gillet, for plaintiff in error. Mr. Benjamin, for defendant. * Mr. Justice GRIER delivered the opinion of the court. [* 395] Donovan was defendant below in an action for a balance of accounts claimed as due by him to the firm of Owen & Ihmsen. This claim had been transferred by that firm to one Frederic Lorenz, and, after his death, transferred to Ihmsen, the plaintiff below. The cause was tried, by consent of parties, without the intervention of a jury; consequently, the exceptions to the admission of testimony are irregular, and need not be particularly noticed. Besides, we can see no good ground of objection to the evidence of Martin v. Ihmsen. confessions and admissions of a party, consisting of accounts rendered in a former controversy on the same subject, before arbitrators. The award itself was not received by the court as evidence of the amount of debt due, because it had been set aside from some irregularity. The objections to the admission of the paper showing the transfers of the account were equally without foundation. By the law of Pennsylvania, where these transfers were made, Ihmsen would have an equitable interest in the account; but in that State the mere equitable assignee of an account would not sue in his own name, such chose in action not being assignable at common law. There the suit would have been brought in the name of Owen & Ihmsen, the original creditors, for the use of Lorenz, Ihmsen, or any other person holding the equitable right to the account. But in Louisiana, where, by the rule of the civil law, there is no such distinction between the legal and equitable title, Ihmsen, [*396] as equitable owner, could* sustain the suit in his own name, and the assignments admitted to prove his title. were properly received. This case was tried at April term, 1856. The president judge has reported his finding of the facts and his judgment thereon. Some six months afterward, the defendants below made up a statement of facts, (to which the plaintiff refused his assent,) and presented it to the district judge, and demanded that he should seal a bill of exceptions. This the judge properly refused to do, but signed a bill of exceptions taken to his decision refusing to sign one. This novelty in practice requires no further notice. The only question of law arising on the facts of this case as reported by the court was on the plea of prescription. On this point, the court gave their opinion as follows: "Without considering the questions whether the account in this case is an open account, within the meaning of the statute of Louisiana, or whether the statute operates upon demands that were subsisting at its date, our conclusion is, that the proceedings in the fourth district court, relative to the award, were an interruption of that prescription. There was a suit pending between the parties, the present defendant being the plaintiff, which embraced a portion of the matter of this controversy. It was competent to the defendants, by instituting a demand in reconvention, to bring up the whole of the controversy for a settlement in that suit; and if that had been done, a legal interruption would have resulted within the 3484th, 3485th sections of the civil code. (Dreggs v. Morgan, 10 Rob. 120.) This was not formally done on the record, but the Combs v. Hodge. parties did, by consent, that which we are bound to consider as having an equivalent value. "They came to an agreement that arbitrators selected by them should have the power to decide who was the creditor of the contesting parties, to settle finally ('without appeal') the amount due on either part, and that the attorney of either party might move for judgment on this award. It is clear, that had the arbitrators. proceeded regularly, and a judgment been rendered upon it, no exception could have been taken to the condition of the pleadings in the pending suit, or that there * had not been [* 397] a demand in reconvention. The consent in the submission agreement implied a waiver of all pleadings of that nature, and was a release of all errors in the preliminary stages of the suit. Donovan appeared in the district court, and successfully resisted a motion for judgment upon the award rendered. But the code does not require that a suit should be successfully prosecuted to operate as an interruption of prescription. (Trop. de Pres. sec. 561; Dunn v. Kinney, 11 Rob. 247; Baden v. Baden, 4 Ann., 468.") We see no error in this statement of the law, and consequently affirm the judgment with costs. LESLIE COMBS, Appellant, v. JOHN L. HODGE, Administrator, and others. 21 H. 397. NEGOTIABLE INSTRUMENTS-CASE BADLY PRESENTED REVERSED AND REMANDED. 2. Certificates of the public debt of the republic of Texas distinguished from negoti 3. Case wanting in evidence of material matters within the knowledge of the parties to the suit reversed and remanded for amended pleadings and further testimony. APPEAL from the circuit court for the District of Columbia. The case is sufficiently stated in the opinion. Mr. Bradley and Mr. Baxter, for appellant. Mr. Reverdy Johnson, senior, and Mr. R. Johnson, junior, for appellees. *Mr. Justice CAMPBELL delivered the opinion of the court. [* 403 ] The plaintiff filed his bill to establish his claim to two certificates for a portion of the public debt of the republic of Texas, which had been issued to him in the year 1839, and which were 21h 397 L-ed 115 133 487 |