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& 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 plaintiff's petition prayed judgment on several promissory notes, of which some, amounting to $530, were due, and others, amounting to $1,664, were not due, the jurisdictional amount then, as now, being $2,000. In holding that the court had jurisdiction of the claim this court, by Mr. Justice Brewer, said:

"Although there might be a perfect defense to the suit for at least the amount not yet due, yet the fact of a defense, and a good defense, too, would not affect the question as to what was the amount in dispute. Suppose an action were brought on a non-negotiable note for $2,500, the consideration for which was fully stated in the petition, and which was a sale of lottery tickets, or any other matter distinctly prohibited by statute,-can there be a doubt that the circuit court would have jurisdiction? There would be presented a claim to recover the $2,500; and whether that claim was sustainable or not, that would be the real sum in dispute. In short, the fact of a valid defense to a cause of action, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine what is the matter in dispute; for who can say in advance that that defense will be presented by the defendant, or, if presented, sustained by the

court?"

Nevertheless, however stringent and farreaching the rule may be that it is the plaintiff's statement of his case which governs in determining the jurisdiction, it does not exclude the power of the court to protect itself against fraud. This was pointed out in Smith v. Greenhow, ubi supra, where it was said that, if the court found as a fact that the damages were laid in the declaration colorably and beyond a reasonable expectation of recovery, for the purpose of creating jurisdiction, there would be authority for dismissing the case; and, following this statement of the law, it was held that where the judge of the circuit court, upon sufficient evidence, found that the damages had been claimed and magnified fraudulently beyond the jurisdictional amount, the action should be dismissed. Globe Ref. Co. v. Landa Cotton Oil Co. 190 U. S. 540, 47 L. ed. 1171, 23 Sup. Ct. Rep. 754. It follows, therefore, as has been said, that if the third finding of the judge in the court below was warranted, his action in dismissing the case should be affirmed. But, after an examination of the evidence, we are of the opinion that nothing in it warranted any such finding. It appeared clearly that the Pendleton pasture, which the plaintiff sought to recover against all

excess of the jurisdictional amount. There was not a word of evidence reflecting upon the plaintiff's good faith in bringing the action, in joining the defendants, or in framing his petition. He doubtless preferred to try his controversy in the Federal courts, and, whatever the motive of his preference may have been, he had the right to act upon it. Blair v. Chicago, 201 U. S. 400, 50 L. ed. 801, 26 Sup. Ct. Rep. 427; Chicago v. Mills (decided February 4, this term) 204 U. S. 321, 51 L. ed. 504, 27 Sup. Ct. Rep. 286. Therefore the validity of the order of dismissal must be considered, after an elimination of the finding that the plaintiff's claim was fraudulently made.

The plaintiff's claim, which we now assume to have been made in good faith, was that the defendants, acting together, took and held from him land of the value of $5,000, and at the same time inflicted damages upon him of $2,000. Upon any possible theory of law this claim states the plaintiff's side of a controversy which is unquestionably within the jurisdiction of the circuit court. When it is duly put in issue by the defendants' pleadings the record upon its face discloses a controversy between citizens of different states, in which "the matter in dispute exceeds $2,000 in value," and, therefore, one which is within the exact words of the act conferring jurisdiction upon that court. It is legally possible for the plaintiff to recover the full amount of all the land and the full amount of the damages claimed. We know of no case that holds that in such a situation the judge of the circuit court is authorized to interpose and try a sufficient part of the controversy between the parties to satisfy himself that the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy between the parties is concerning a subject of less than the jurisdictional value, and we think that, by sound principle, he is forbidden to do so. In exercising the authority to dismiss the action conferred by the act of 1875 the judge may proceed upon motion of the parties or upon his own motion, and, if he chooses, without trial by jury. Williams v. Nottawa, 104 U. S. 209, 26 L. ed. 719; Wetmore v. Rymer, ubi supra. Such an authority obviously is not unlimited, and its limits ought to be ascertained and observed, lest, under the guise of determining jurisdiction, the merits of the controversy between the parties be summarily decided without the ordinary incidents of a trial, including the right to a jury. For it must not be forgotten that where, in good faith, one has brought into court a cause of action which, as stated by

question. There is certainly respectable au-
thority which tends to show that in such a
case the plaintiff, being the owner of a
single lot of land, may maintain one action
against all the defendants, and that the
measure of jurisdiction is the value of the
plaintiff's land, and not the value of the
part held by each defendant.
The appro-
priate rule, however, to be applied to the
facts of this case, can be better determined
in a trial on the merits, where instructions
on their varied aspects may be given to the
jury, subject to the review provided by law.
Because the circuit court erred in dis-
missing the case for want of jurisdiction,
its action must be reversed.

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 provided by the Constitution and law, and cannot be compelled to submit to a trial of another kind. This was clearly stated by Mr. Justice Matthews in Barry v. Edmunds, 116 U. S., at page 565, 29 L. ed., at page 734, 6 Sup. Ct. Rep., at page 509, who said: "In no case is it permissible for the court to substitute itself for the jury, and compel a compliance on the part of the latter with its own view of the facts in evidence, as the standard and measure of that justice which the jury itself is the appointed constitu- | tional tribunal to award." In applying these general principles for the purpose of ascertaining the limits of the authority to dismiss summarily for lack of jurisdiction, the circumstance that, in this case, a jury was waived by the parties, is without sig. nificance, because, if the judge had authority to adopt this summary method, he could dispense with the jury whether the parties agreed to it or not.

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 recover was not of a value in excess of $2,000, but that parts of that land which each defendant claimed that the plaintiff ought only to recover against him were each of less than the value of $2,000. As the plaintiff alleged, and the defendants denied, that the defendants jointly took and held his whole lot of land, the judge, on the conceded value of the plaintiff's land, in order to have arrived at the conclusion that the case should be dismissed, must have found that the defendants had not jointly taken and held the whole of the plaintiff's land. In doing this we think he exceeded his authority under the statute, and, in determining the jurisdiction, in effect decided the controversy between the parties upon the merits. In deciding that the defendants had not acted jointly, as the plaintiff alleged and the defendants denied, he determined not a jurisdictional fact, but an essential element of the merits of the dispute upon which the parties were at issue.

The judgment of the court below is therefore reversed and the cause remanded to that court with directions to take such further proceedings therein as the law requires and in conformity with this opinion. Mr. Justice Brewer dissents.

V.

JOSEPH M. CUNNINGHAM, Trutsee; Ida
May Jones and Andrieus A. Jones, Plffs.
in Err.,
CHARLES SPRINGER and John B. Dawson.
Appeal-harmless error.

1. Error, if any, in refusing to strike out expert testimony as to the reasonable value of legal services, because, on crossexamination, it appeared that such testimony was based upon an assumption of dicial, where the jury, by its verdict, finds fact not disclosed to the jury, is not prejuthat the amount of compensation to be paid for such services was fixed by contract, and each witness testified upon the assumption that the compensation was not so fixed, and it was upon that assumption alone that their testimony was submitted to the jury.* Appeal-going outside the record.

2. An appellate court cannot assume that an amended instruction was not taken out by the jury when it retired, in the absence of any statement to that effect in the record.

-

Trial instructions - compliance with request.

3. The trial judge does not err in refusing to adopt the exact words of a requested instruction if he instructs the jury correctly and in substance covers the relevant rules of law proposed by counsel.†

An assumption which underlay the action of the court below in dismissing the case evidently was that, if the defendants, as they asserted in their pleadings, had each. acting by virtue of a separate and independent title, taken and held a part only of the plaintiff's land, each part being less than the jurisdictional amount, although the whole was of more than the jurisdic- Argued January 10, 1907. Decided Februtional amount, there was no controversy within the jurisdiction of the circuit court. The correctness of this assumption of law

I

[No. 146.]

ary 25, 1907.

N ERROR to the Supreme Court of review a

has been argued before us by the parties. Territory of New Mexico tort of tha

has been argued us

*Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4175, 4176.

†Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 665, 668.

judgment which affirmed a judgment of the, the court are presented here for consideraDistrict Court of San Miguel County, in tion. that territory, in favor of defendants in an action to recover for legal services. Af-nesses, who qualified as experts, as to the firmed. value of Jones' services, and their estimates

Both parties offered testimony of wit

See same case below (N. M.) 82 Pac. 232. ranged from $2,000 to $125,000. Three wit

Statement by Mr. Justice Moody:

The plaintiffs brought an action in the district court in the territory of New Mexico, in which they sought to recover $75,000 as the reasonable value of the services of the plaintiff Jones, as an attorney at law, rendered to the defendants at their request. For answer the defendants pleaded a general denial and payment. The jury returned a verdict for the defendants. The plaintiffs alleged exceptions to certain rulings of the judge who presided at the trial, which were overruled by the supreme court of the territory, and are here upon writ of error to that court. The exceptions are stated in the opinion.

Mr. Neill B. Field for plaintiffs in error. Mr. Charles A. Spiess, Thomas B. Catron, Aldis B. Browne, and Alexander Britton for defendants in error.

Mr. Justice Moody delivered the opinion of the court:

nesses called by the defendants on this branch of the case, after testifying to their qualifications and their knowledge of the course of the litigation in which Jones was employed, gave their opinion of the value of Jones's services on the assumption that his fee was not fixed by contract. No objection was made to the testimony at the time it was given, but, it appearing upon cross-examination that each witness assumed in his own mind some value of the land in dispute in the litigation in which Jones was employed, counsel for the plaintiffs, without asking what that value was, in the case of each witness, at the conclusion of his testimony, moved to strike it out, because it was based upon an assumption of the value of the land in controversy in the original case, which was not disclosed to the jury and not based upon the evidence in the case on trial. To the refusal of the court to strike out the testimony the plaintiffs excepted.

These three exceptions do not materially differ, and may, therefore, be considered to

The plaintiff Jones was engaged as an at-gether. They illustrate the importance of torney at law by the defendants, in an action of ejectment to recover certain lands from one of the defendants, in which the other defendant had an interest. Under his employment Jones rendered services in the preparation and trial of the case in the district and supreme courts of the territory of New Mexico and in the Supreme Court of the United States. The plaintiffs brought this action to recover the reasonable value of Jones's services. The defendants, admitting the employment and the services, contended that they were rendered under a special contract, whereby Jones agreed to accept $500 in full payment for the entire litigation, and that payment was made in conformity with the agreement. The plaintiffs, admitting that a payment of $500 was made to and accepted by Jones, contended that it was made and accepted in pursuance of an agreement to accept that sum as full payment for the service to be rendered in the first trial of the case in the district and supreme courts of the territory, and did not cover the services in this court, or in the subsequent proceedings in the courts of the territory, for which they claimed the sum of $75,000 as a reasonable compensation. The parties introduced evidence in support of their respective contentions. The jury returned a verdict for the defendants. Exceptions to the rulings and instructions of

a strict application of the principle that the excepting party should make it manifest that an error prejudicial to him has occurred in the trial in order to justify an appellate court in disturbing the verdict. The witnesses were testifying in chief in response to hypothetical questions which do not appear in the record. The plaintiffs had the right to the fullest cross-examination for the purpose of determining their competency and affecting the weight of their testimony. If there was in the mind of either of the witnesses an assumption of fact not fairly presented by the evidence, or one which the jury might regard as improbable, it might have been elicited upon cross-examination, and the testimony then excluded or discredited accordingly. This course was not pursued by counsel, who preferred to obtain the benefit of an exception. To say the least, it is difficult to detect any error in the rulings. But, assuming, without deciding or intimating, that there was error in the refusal of the court to strike out the testimony of these witnesses, the error was not prejudicial' to the plaintiffs, because, by the course of the trial, this branch of the case became entirely immaterial. The defendants' contention was that Jones was employed under a contract by which he agreed to give his services throughout the entire litigation for $500, and that he had

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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 true, but also in the settlement of the dispute as to the terms of the contract between the parties, upon the theory that if the services of Jones were reasonably worth a far larger sum than $500, that fact would have some tendency to show that he did not agree to render them for $500. However this may be, the testimony on the value of the services was not admitted for any such purpose. Each witness testified upon the assumption that the compensation was not fixed by contract, and it was upon that assumption alone that the testimony was submitted for the consideration of the jury. It was not admitted for the purpose of determining the dispute between the parties as to the terms of the contract. Moreover, in submitting that testimony to the jury under instructions which were clear and adequate, the judge who presided at the trial limited it to the purposes for which it was admitted, and instructed the jury that if they believed from the evidence that the contract was that Jones should give his

The thirteenth instruction to the jury was as follows:

"In this case the burden of proof is upon the plaintiffs as to every material fact, except that of payment, as to which fact the burden of proof is upon the defendants. In order to entitle the plaintiffs to recover in this case, they must establish every such material fact, with the exception aforesaid, by a preponderance of the evidence; and if you find that the evidence bearing upon the plaintiffs' case is evenly balanced, or that it preponderates in favor of the defendant, then the plaintiffs cannot recover, and you shall find for the defendants."

To this instruction the plaintiffs excepted. Thereupon the judge said to the jury:

"In the thirteenth instruction given you by the court, in which I spoke about the burden of proof, I have concluded to modify that instruction by striking out the words material fact in the second line and inserting in lieu thereof the word issue; and also in same line the word fact and insert in 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 read, gentlemen, as follows:

"In this case the burden of proof is on the plaintiffs as to every issue, except that of payment, as to which issue the burden of proof is upon the defendants. In order to entitle the plaintiffs to recover in this case they must establish every such issue, with the exception aforesaid, by a preponderance of the evidence; and if you find that the evidence bearing upon the plaintiffs' case is evenly balanced, or that it preponderates in favor of the defendants, then the plaintiffs cannot recover, and you should find for the defendants.'

"Now, gentlemen, I will withdraw instruction No. thirteen given to you before, and insert and give this amended instruction instead."

The court read the foregoing amended instruction from a carbon copy of the original charge, in which the words above mentioned as stricken out were crossed out with a pencil, and the words mentioned as having been inserted were written in with a pencil. After the foregoing amended instruction was read to the jury, the counsel for the plaintiffs said to the court:

"As thus modified I think the charge is absolutely without objection, if the court please."

The exception, therefore, was abandoned in open court, but it is argued that reversible error appears in the record because it goes on to say:

"The amendment to the thirteenth instruction by the court to the jury as thus made was also taken down by the court's stenographer and transcribed by the said stenographer from his notes of the proceedings of the trial and attached to the original charge on file, after the verdict of the jury had been returned."

In support of this contention it was said that by 2922 of the statute of New Mexico "all instructions to the jury must be in writing;" and that, by § 3002, "the jury, when it retires, shall be allowed to take the pleadings in the case, instructions of the court, and any instruments in writing admitted as evidence." and urged that either the record shows that the amended instruction in writing was not taken to the jury room, and therefore the plaintiff is entitled to claim this failure as an error, although it was not alleged at the time of the occurrence, or that, by the failure of the court to send the amended instruction to the jury. the plaintiff is entitled to the benefit of the original exception which was abandoned in open court. Whatever merit this contention may have rests upon the assumption that the amended instruction was not taken by

whether it was so taken or not. It is enough to say that the record does not affirmatively disclose that the judge failed to give the written amendment to the jury when it retired. If the plaintiffs' counsel did not discover at the time that the instructions were not taken by the jury, in accordance with the terms of the statute, it is too much to expect this court to conjecture that they were not taken, in the absence of any such statement in the record. Grove v. Kansas City, 75 Mo. 672.

An exception is alleged to the refusal of the court to give the following instruction: "If the jury believes from the evidence that the plaintiff A. A. Jones agreed with the defendant Charles Springer to defend the case of the Maxwell Land Grant Co. v. Dawson, for a fee of $500, and that thereafter and before the rendition of all the services agreed to be rendered by said Jones in said cause, the said Springer said to the said Jones, 'You cannot be expected to attend to this business for any $500; go on with the case, and we will see how we come out, and after it is all over, you will be paid what is right,' or words to that effect, and such proposition was accepted and acted on by said Jones, then the plaintiffs in this case are entitled to recover for the services of said Jores in said case whatever the same may be reasonably worth, as shown by the evidence in this case."

But the instruction requested was substantially as given by the court in instructions 5 and 8, which are as follows:

"Plaintiffs claim, however, that the original contract in relation to the services of A. A. Jones was modified by a subsequent agreement made with the defendant Charles Springer to the effect that his compensation was not to be limited to the $500 originally fixed, but that he was to go on with the litigation, see how it came out, and then Charles Springer would do what was right, and after the property should be sold he would pay said Jones a big cash fee.

"(8) If the jury believes from the evidence that the original contract in relation to Mr. Jones's compensation was afterward modified so that such compensation was not to be the $500 agreed upon, then you should find for the plaintiffs in such sum as you believe from the evidence to be the reasonable value for the services of Jones, less whatever sum may have been paid thereon."

The plaintiff excepted to the refusal of the court to instruct the jury as follows:

"The court instructs the jury that the credibility of the witnesses is a question exclusively for tne jury; and the law is that where two witnesses testify directly opposite to each other, the jury are not bour

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