Summary
In Lamar v. Micou, 104 U.S. 465, where the appeal was taken by a defendant from a decree against him for less than $5,000, it was held that if the set-off or counterclaim relied on would only have the effect of reducing the amount of the recovery, without entitling the defendant to a decree in his own favor, there was no jurisdiction.
Summary of this case from Hilton v. DickinsonOpinion
OCTOBER TERM, 1881.
A defendant, who made no defence except to reduce the amount of the recovery, cannot appeal from a decree against him for less than $5,000.
Mr. S.P. Nash in support of the motion.
Mr. Edward N. Dickerson and Mr. Charles J. Beaman, Jr., contra.
MOTION to dismiss an appeal from the Circuit Court of the United States for the Southern District of New York.
This is an appeal by the defendant below from a decree against him for less than $5,000. There is no claim of set-off or counter-claim, except to reduce the amount of the recovery. In no event can he get any money decree in his favor. All he seeks to do is to defeat the claim of the appellee. Consequently the amount in controversy, so far as this appeal is concerned, is fixed by the decree. Thompson v. Butler, 95 U.S. 694; Sampson v. Welsh, 24 How. 207. In effect he insists that, under the rule of liability established against him in the court below, the decree should have been for more than $5,000, and that for this reason he is entitled to an appeal, so that he may show he is not liable at all. This, we think it clear, is not the law.
The case is not changed by the fact that if, under an appeal which is pending in another suit, it shall be found the appellant was credited in this suit with an amount which properly belonged to that, the decree in that suit will be reduced, while the one in this cannot be correspondingly increased. The appellee is satisfied with this decree, and has not appealed. The appellant cannot complain if it turns out in the end that, but for a mistake which was made in his favor, the appellee might have recovered a larger amount.
Appeal dismissed.