Green v. Fisk (154 U.S. 668)/Opinion of the Court

This, like Green v. Fisk (just decided) 103 U.S. 518, is a motion to dismiss an appeal in a partition suit because the decree appealed from is not final, and also because the value of the matter in dispute does not exceed $5,000. The appellees (complainants below) claim to be the owners each of one-eighth of the property to be divided, which it is admitted is worth only $10,000. In the petition it is alleged that the value of the annual income was $5,000, and an account of the revenue is asked, as well as a partition. This suit, like the other, was begun in a state court, and removed by Green to the circuit court, where, by an express order, it was put on the equity docket, and a change in the pleadings directed so as to make it conform to rules governing equity cases.

The decree appealed from simply adjudges that the appellees are the owners each of one-eighth of the property, and refers the matter 'to J. W. Gurley, Esq., master, to proceed to a partition according to law, under the directions of the court.' As was decided in the other case, this is not a final decree, but, if it was, we would be without jurisdiction, because the property, only, has been adjudged to the appellees, and the value of that is less than the amount required to bring a case here. There has been no order even for an accounting, and as yet we are not advised there ever will be one; much less that, if it should be made, a balance would be found due from the appellant sufficient to make the value of the matter in dispute, on an appeal by him, such as our jurisdiction requires. As the appellant, to sustain his appeal, must show affirmatively that more in pecuniary value than our jurisdictional requirement has been adjudged against him, he has failed to make a case for us to consider.

The motion to dismiss is granted.

Thomas J. Semmes, for appellant.

Thomas J. Durant and Charles W. Horner, for appellees.