the

& S. Co. 147 U. S. 500, 37 L. ed. 255, 13 the defendants, was of a value much in Sup. Ct. Rep. 416. In the last case the excess of the jurisdictional amount. There plaintiff's petition prayed judgment on sev- was not a word of evidence reflecting upon eral promissory notes, of which some, the plaintiff's good faith in bringing the amounting to $530, were due, and others, action, in joining the defendants, or in amounting to $1,664, were not due, the framing his petition. He doubtless prejurisdictional amount then, as now, being ferred to try his controversy in the Federal $2,000. In holding that the court had juris-courts, and, whatever the motive of his prefdiction of the claim this court, by Mr. erence may have been, he had the right to Justice Brewer, said:

act upon it. Blair v. Chicago, 201 U. S. 400, “Although there might be a perfect de 50 L. ed. 801, 26 Sup. Ct. Rep. 427; Chicafense to the suit for at least the amount go v. Mills (decided February 4, this term) not yet due, yet the fact of a defense, and 204 U. S. 321, 51 L. ed. 504, 27 Sup. Ct. Rep. a good defense, too, would not affect the 286. Therefore the validity of the order question as to what was the amount in dis- of dismissal must be considered, after an pute. Suppose an action were brought on a elimination of the finding that the plainnon-negotiable note for $2,500, the consid- tiff's claim was fraudulently made. eration for which was fully stated in the The plaintiff's claim, which we now aspetition, and which was a sale of lottery sume to have been made in good faith, was tickets, or any other matter distinctly pro- that the defendants, acting together, took hibited by statute,-can there be a doubt and held from him land of the value of that the circuit court would have jurisdic- $5,000, and at the same time inflicted damtion? There would be presented a claim ages upon him of $2,000. Upon any posto recover the $2,500; and whether that sible theory of law this claim states the claim was sustainable or not, that would plaintiff's side of a controversy which is be the real sum in dispute. In short, the unquestionably within the jurisdiction of fact of a valid defense to a cause of action, the circuit court. When it is duly put in although apparent on the face of the peti- issue by the defendants' pleadings the record tion, does not diminish the amount that is upon its face discloses a controversy beclaimed, nor determine what is the matter tween citizens of different states, in which in dispute; for who can say in advance that “the matter in dispute exceeds $2,000 in that defense will be presented by the defend- value," and, therefore, one which is withant, or, if presented, sustained by the in the exact words of the act conferring court?"

jurisdiction upon that court. It is legally Nevertheless, however stringent and far- possible for the plaintiff to recover the full reaching the rule may be that it is the amount of all the land and the full amount plaintiff's statement of his case which gov- of the damages claimed. We know of no erns in determining the jurisdiction, it does case that holds that in such a situation not exclude the power of the court to pro- the judge of the circuit court is authorized tect itself against fraud. This was pointed to interpose and try a sufficient part of the out in Smith v. Greenhow, ubi supra, where controversy between the parties to satisfy it was said that, if the court found as a himself that the plaintiff ought to recover fact that the damages were laid in the dec- less than the jurisdictional amount, and to laration colorably and beyond a reasonable conclude, therefore, that the real controexpectation of recovery, for the purpose of versy between the parties is concerning a creating jurisdiction, there would be au- subject of less than the jurisdictional value, thority for dismissing the case; and, fol- and we think that, by sound principle, he lowing this statement of the law, it was is forbidden to do so. In exercising the auheld that where the judge of the circuit thority to dismiss the action conferred by court, upon sufficient evidence, found that the act of 1875 the judge may proceed upon the damages had been claimed and magnified motion of the parties or upon his own fraudulently beyond the jurisdictional motion, and, if he chooses, without trial amount, the action should be dismissed. by jury. Williams v. Nottawa, 104 U. S. Globe Ref. Co. v. Landa Cotton Oil Co. 190 209, 26 L. ed. 719; Wetmore v. Rymer, ubi U. S. 540, 47 L. ed. 1171, 23 Sup. Ct. Rep. supra. Such an authority obviously is not 754. It follows, therefore, as has been said, unlimited, and its limits ought to be asthat if the third finding of the judge in certained and observed, lest, under the the court below was warranted, his action guise of determining jurisdiction, the merits in dismissing the case should be affirmed. of the controversy between the parties be But, after an examination of the evidence, summarily decided without the ordinary inwe are of the opinion that nothing in it cidents of a trial, including the right to warranted any such finding. It appeared a jury. For it must not be forgotten that clearly that the Pendleton pasture, which where, in good faith, one has brought into the plaintiff sought to recover against all court a cause of action which, as stated by in Err.,

him, is clearly within its jurisdiction, he has We do not deem it necessary to decide that the right to try its merits in the manner question. There is certainly respectable auprovided by the Constitution and law, and thority which tends to show that in such a cannot be compelled to submit to a trial of case the plaintiff, being the owner of a another kind. This was clearly stated by single lot of land, may maintain one action Mr. Justice Matthews in Barry v. Edmunds, against all the defendants, and that the 116 U. S., at page 565, 29 L. ed., at page measure of jurisdiction is the value of the 734, 6 Sup. Ct. Rep., at page 509, who said: plaintiff's land, and not the value of the

6 “In no case is it permissible for the court part held by each defendant. The approto substitute itself for the jury, and compel priate rule, however, to be applied to the a compliance on the part of the latter with facts of this case, can be better determined its own view of the facts in evidence, as the in a trial on the merits, where instructions standard and measure of that justice which on their varied aspects may be given to the the jury itself is the appointed constitu- jury, subject to the review provided by law. tional tribunal to award." In applying Because the circuit court erred in disthese general principles for the purpose of missing the case for want of jurisdiction, ascertaining the limits of the authority to its action must be reversed. dismiss summarily for lack of jurisdiction, The judgment of the court below is therethe circumstance that, in this case, a jury fore reversed and the cause remanded to was waived by the parties, is without sig. that court with directions to take such furnificance, because, if the judge had author-ther proceedings therein as the law requires ity to adopt this summary method, he could and in conformity with this opinion. dispense with the jury whether the parties agreed to it or not.

Mr. Justice Brewer dissents. The error into which the judge in the court below has fallen is shown by an analysis of his findings. He did not find that the land which the plaintiff claimed to re- JOSEPH M. CUNNINGHAM, Trutsee; Ida

May Jones and Andrieus A. Jones, Plffs. cover was not of a value in excess of $2,000, but that parts of that land which each de

v. fendant claimed that the plaintiff ought on-CHARLES SPRINGER and John B. Dawson. ly to recover against him were each of less than the value of $2,000. As the plain. Appeal—harmless error. tiff alleged, and the defendants denied, that 1. Error, if any, in refusing to strike the defendants jointly took and held his out expert testimony as to the reasonable whole lot of land, the judge, on the conceded value of legal services, because, on crossvalue of the plaintiff's land, in order to examination, it appeared that such testihave arrived at the conclusion that the case mony was based upon an assumption of should be dismissed, must have found that dicial, where the jury, by its verdict, finds

fact not disclosed to the jury, is not prejuthe defendants had not jointly taken and that the amount of compensation to be paid held the whole of the plaintiff's land. In for such services was fixed by contract, and doing this we think he exceeded his author- each witness testified upon the assumption ity under the statute, and, in determining that the compensation was not so fixed, and the jurisdiction, in effect decided the con- it was upon that assumption alone that troversy between the parties upon the mer- their testimony was submitted to the jury.* its. In deciding that the defendants had Appeal-going outside the record. not acted jointly, as the plaintiff alleged

2. An appellate court cannot assume and the defendants denied, he determined that an amended instruction was not taken not a jurisdictional fact, but an essential sence of any statement to that effect in the

out by the jury when it retired, in the abelement of the merits of the dispute upon record. which the parties were at issue.

Trial - instructions - compliance with reAn assumption which underlay the action

quest. of the court below in dismissing the case 3. The trial judge does not err in refusevidently was that, if the defendants, as ing to adopt the exact words of a requested they asserted in their pleadings, had each, instruction if he instructs the jury correctly acting by virtue of a separate and inde- and in substance covers the relevant rules pendent title, taken and held a part only of law proposed by counsel. of the plaintiff's land, each part being less

[No. 146.] than the jurisdictional amount, although the whole was of more than the jurisdic- Argued January 10, 1907. Decided Februtional amount, there was no controversy

ary 25, 1907. within the jurisdiction of the circuit court. The correctness of this assumption of law

I

N ERROR to the Supreme Court of the has been argued before us by the parties. Territory of New Mexico to review a judgment which affirmed a judgnient of the, the court are presented here for consideraDistrict Court of San Miguel County, in tion. that territory, in favor of defendants in an Both parties offered testimony of wit action to recover for legal services. "Af- nesses, who qualified as experts, as to the firmed.

value of Jones' services, and their estimates See same case below (N. M.) 82 Pac. 232. ranged from $2,000 to $125,000. Three wit

nesses called by the defendants on this Statement by Mr. Justice Moody:

branch of the case, after testifying to their The plaintiffs brought an action in the qualifications and their knowledge of the district court in the territory of New Mex- course of the litigation in which Jones was ico, in which they sought to recover $75,- employed, gave their opinion of the value 000 as the reasonable value of the services of Jones's services on the assumption that of the plaintiff Jones, as an attorney at his fee was not fixed by contract. No oblaw, rendered to the defendants at their jection was made to the testimony at the request. For answer the defendants pleaded time it was given, but, it appearing upon a general denial and payment. The jury | cross-examination that each witness assumed returned a verdict for the defendants. The in his own mind some value of the land in plaintiffs alleged exceptions to certain rul- dispute in the litigation in which Jones ings of the judge who presided at the trial, was employed, counsel for the plaintiffs, which were overruled by the supreme court without asking what that value was, in the of the territory, and are here upon writ of case of each witness, at the conclusion of error to that court. The exceptions are his testimony, moved to strike it out, bestated in the opinion.

cause it was based upon an assumption of

the value of the land in controversy in the Mr. Neill B. Field for plaintiffs in error. original case, which was not disclosed to

Mr. Charles A. Spiess, Thomas B. Catron, the jury and not based upon the evidence in Aldis B. Browne, and Alexander Britton the case on trial. To the refusal of the for defendants in error.

court to strike out the testimony the plain

tiffs excepted. Mr. Justice Moody delivered the opinion of These three exceptions do not materially the court:

differ, and may, therefore, be considered toThe plaintiff Jones was engaged as an at-gether. They illustrate the importance of torney at law by the defendants, in an a strict application of the principle that action of ejectment to recover certain lands the excepting party should make it manifest from one of the defendants, in which the that an error prejudicial to him has ocother defendant had an interest. Under curred in the trial in order to justify an aphis employment Jones rendered services in pellate court in disturbing the verdict. The the preparation and trial of the case in the witnesses were testifying in chief in redistrict and supreme courts of the territory sponse to hypothetical questions which do of New Mexico and in the Supreme Court not appear in the record. The plaintiffs of the United States. The plaintiffs brought had the right to the fullest cross-examinathis action to recover the reasonable value tion for the purpose of determining their of Jones's services. The defendants, admit-competency and affecting the weight of their ting the employment and the services, con- testimony. If there was in the mind of tended that they were rendered under a either of the witnesses an assumption of fact special contract, whereby Jones agreed to ac- not fairly presented by the evidence, or one cept $500 in full payment for the entire which the jury might regard as improbable, litigation, and that payment was made in it might have been elicited upon cross-exconformity with the agreement. The plain-amination, and the testimony then excluded tiffs, admitting that a payment of $500 was or discredited accordingly. This course was ma to and accepted by Jones, contended not pursued by counsel, who preferred to that it was made and accepted in pursuance obtain the benefit of an exception. To say of an agreement to accept that sum as full the least, it is difficult to detect any error payment for the service to be rendered in in the rulings. But, assuming, without dethe first trial of the case in the district and ciding or intimating, that there was error supreme courts of the territory, and did not in the refusal of the court to strike out cover the services in this court, or in the the testimony of these witnesses, the error subsequent proceedings in the courts of the was not prejudicial' to the plaintiffs, beterritory, for which they claimed the sum cause, by the course of the trial, this branch of $75,000 as a reasonable compensation. of the case became entirely immaterial. The The parties introduced evidence in support defendants' contention was that Jones was of their respective contentions. The jury employed under a contract by which he returned a verdict for the defendants. Ex- agreed to give his services throughout the ceptions to the rulings and instructions of entire litigation for $500, and that he had been paid in accordance with the terms of services throughout the entire litigation for the contract. The plaintiffs' contention was $500, then the jury "should not consider the that he agreed upon $500 as his compensa evidence of the various attorneys who have tion for the trial of the case in the district testified to the reasonable value of the servcourt and the supreme court of the territory, ices of the said Jones, but should disregard and that for all subsequent services he was the same, for the reason that the contract entitled to be paid a reasonable compensa- has limited and fixed the amount to which tion. In the charge to the jury these con- said Jones is entitled.” To the admission flicting contentions were clearly submitted of the evidence for this limited purpose, to for determination. The jury were instructed the instructions of the judge thus limiting that if, as the defendants asserted, Jones it and directing that it should be disrehad agreed to give his services throughout garded if the jury found the defendants' verthe entire litigation for $500, and that sion of the contract to be true, the plaintiffs that $500 had been paid to him, that did not object. It is too late now to claim the verdict should be for the defendants. that it might have been admissible for a The jury were instructed, on the other hand, broader purpose. There is, therefore, prethat, if the contract between the parties sented a case of evidence admitted and used was as asserted by the plaintiffs, the jury solely upon an issue which has become imshould find for the plaintiffs whatever part material by the verdict of the jury. Any of the $500 remained unpaid and, in addi- errors, therefore, if such there were, in adtion thereto, the reasonable value of the mitting the evidence, became immaterial. services Jones rendered in the subsequent Greenleaf v. Birth, 5 Pet. 132, 8 L. ed. 72; proceedings. In other words, the jury were Brobst v. Brock (Doe ex dem. Brobst v. instructed that, only in the case Jones Roe) 10 Wall. 526, 19 L. ed. 1002; Poland agreed to give his services throughout the v. Brownell, 131 Mass. 138, 41 Am. Rep. entire litigation for $500, which had been 215; Sullivan v. Lowell & D. Street R. paid, there should be a verdict for the de-Co. 162 Mass. 536, 39 N. E. 185; Oak Isfendants; otherwise there should be a ver- land Hotel Co. v. Oak Island Grove Co. 165 dict for the plaintiffs in a sum to be fixed Mass. 260, 42 N. E. 1124; Geary v. Stevenby the jury. The jury did return a ver- son, 169 Mass. 23, 47 N. E. 508; Read v. dict for the defendants. The verdict, there. Nichols, 118 N. Y. 224, 7 L.R.A. 130, 23 fore, affirmed the defendants' version of the N. E. 468; Schrubbe v. Connell, 69 Wis. contract and thereby rendered all of the tes- 476, 34 N. W. 503; Nones v. Northouse, 46 timony as to the value of Jones's services Vt. 587; Carruthers v. McMurray, 75 Iowa, immaterial. The plaintiffs however, urged 173, 39 N. W. 255; Allen v. Blunt, 2 Woodb. in argument before us that the evidence of & M. 129, Fed. Cas. No. 217; Burnett v. the value of Jones's services was competent Luttrell, 52 Ill. App. 19. For these reasons not only as fixing the amount which he the three foregoing exceptions should be might recover in case his version of the overruled. contract should be found by the jury to be The thirteenth instruction to the jury true, but also in the settlement of the dis-was as follows: pute as to the terms of the contract be. "In this case the burden of proof is upon tween the parties, upon the theory that if the plaintiffs as to every material fact, exthe services of Jones were reasonably worth cept that of payment, as to which fact the a far larger sum than $500, that fact burden of proof is upon the defendants. In would have some tendency to show that he order to entitle the plaintiffs to recover in did not agree to render them for $500. this case, they must establish every such However this may be, the testimony on the material fact, with the exception aforesaid, value of the services was not admitted for by a preponderance of the evidence; and if any such purpose. Each witness testified you find that the evidence bearing upon the upon the assumption that the compensation plaintiffs' case is evenly balanced, or that was not fixed by contract, and it was upon it preponderates in favor of the defendant, that assumption alone that the testimony then the plaintiffs cannot recover, and you was submitted for the consideration of the shall find for the defendants." jury. It was not admitted for the purpose To this instruction the plaintiffs excepted. of determining the dispute between the par- Thereupon the judge said to the jury: ties as to the terms of the contract. More- "In the thirteenth instruction given you over, in submitting that testimony to the by the court, in which I spoke about the jury under instructions which were clear burden of proof, I have concluded to modify and adequate, the judge who presided at the that instruction by striking out the words trial limited it to the purposes for which material fact in the second line and insertit was admitted, and instructed the jury ing in lieu thereof the word issue; and also that if they believed from the evidence that in same line the word fact and insert in the contract was that Jones should give his lieu the word issue, and in the fifth line strike out the words material fact and put the jury when it retired. We do not know in the word issue, so the instruction will whether it was so taken or not. It is read, gentlemen, as follows:

enough to say that the record does not af“ 'In this case the burden of proof is on firmatively disclose that the judge failed the plaintiffs as to every issue, except that to give the written amendment to the jury of payment, as to which issue the burden of when it retired. If the plaintiffs' counsel proof is upon the defendants. In order to did not discover at the time that the inentitle the plaintiffs to recover in this case structions were not taken by the jury, in: they must establish every such issue, with accordance with the terms of the statute, the exception aforesaid, by a preponderance it is too much to expect this court to conof the evidence; and if you find that the jecture that they were not taken, in the evidence bearing upon the plaintiffs' case is absence of any such statement in the recevenly balanced, or that it preponderates in ord. Grove v. Kansas City, 75 Mo. 672. favor of the defendants, then the plaintiffs An exception is alleged to the refusal of cannot recover, and you should find for the the court to give the following instruction: defendants.'

"If the jury believes from the evidence “Now, gentlemen, I will withdraw instruc-that the plaintiff A. A. Jones agreed with tion No. thirteen given to you before, and the defendant Charles Springer to defend insert and give this amended instruction the case of the Maxwell Land Grant Co. v. instead.”

Dawson, for a fee of $500, and that thereThe court read the foregoing amended in- after and before the rendition of all the struction from a carbon copy of the original services agreed to be rendered by said Jones charge, in which the words above mentioned in said cause, the said Springer said to the as stricken out were crossed out with a pen- said Jones, 'You cannot be expected to atcil, and the words mentioned as having been tend to this business for any $500; go on inserted were written in with a pencil. Aft- with the case, and we will see how we come er the foregoing amended instruction was out, and after it is all over, you will be read to the jury, the counsel for the plain-paid what is right, or words to that effect, tiffs said to the court:

and such proposition was accepted and acted “As thus modified I think the charge is on by said Jones, then the plaintiffs in this absolutely without objection, if the court case are entitled to recover for the services please.”

of said Jones in said case whatever the same The exception, therefore, was abandoned may be reasonably worth, as shown by the in open court, but it is argued that re- evidence in this case." versible error appears in the record be- But the instruction requested was subcause it goes on to say:

stantially as given by the court in instruc“The amendment to the thirteenth instructions 5 and 8, which are as follows: tion by the court to the jury as thus made "Plaintiffs claim, however, that the orig. was also taken down by the court's stenog-inal contract in relation to the services of rapher and transcribed by the said stenog- A. A. Jones was modified by a subsequent rapher from his notes of the proceedings agreement made with the defendant Charles of the trial and attached to the original Springer to the effect that his compensation charge on file, after the verdict of the jury was not to be limited to the $500 originalhad been returned."

ly fixed, but that he was to go on with In support of this contention it was said the litigation, see how it came out, and then that by $ 2922 of the statute of New Mex- Charles Springer would do what was right, ico "all instructions to the jury must be in and after the property should be sold he writing;” and that, by $ 3002, “the jury, would pay said Jones a big cash fee. when it retires, shall be allowed to take “(8) If the jury believes from the evithe pleadings in the case, instructions of the dence that the original contract in relation court, and any instruments in writing ad- to Mr. Jones's compensation was afterward mitted as evidence," and urged that either modified so that such compensation was not the record shows that the amended instruc- to be the $500 agreed upon, then you should tion in writing was not taken to the jury find for the plaintiff's in such şum as you room, and therefore the plaintiff is entitled believe from the evidence to be the reasonto claim this failure as an error, although able value for the services of Jones, less it was not alleged at the time of the occur whatever sum may have been paid thereon.” rence, or that, by the failure of the court to The plaintiff excepted to the refusal of send the amended instruction to the jury. the court to instruct the jury as follows: the plaintiff is entitled to the benefit of the “The court instructs the jury that the original exception which was abandoned in credibility of the witnesses is a question exopen court. Whatever merit this contention clusively for the jury; and the law is that may have rests upon the assumption that where two witnesses testify directly oppothe amended instruction was not taken by site to each other, the jury are not bours