Lee v. Watson

LEE and Leavit brought assumpsit in the Circuit Court for the Kentucky District, against Watson, declaring on a promissory note for $610, with a count for $1000 money due for goods sold; $1000 money had and received; $1000 money due on account stated, &c. What damages exactly were claimed in the narr. as originally filed, did not clearly appear, but they were obviously less than $2000. Demurrer was put in to one part of the declaration and non assumpsit pleaded to the residue, and the court having sustained the demurrer, the record proceeded thus:

'On motion of the plaintiffs, and by consent of the defendants, leave is given plaintiffs to amend their declaration by striking out the amount of damages claimed in this cause, and insert $2100, which is done accordingly, and the declaration so amended.'

A jury having been summoned to try the issue raised by the plea of non assumpsit to the money counts, a verdict was found by them for the defendants; whereupon the plaintiff having taken a bill of exceptions on the trial, applied for and obtained a writ of error to this court, under that section of the Judiciary Act which provides that final judgments in a Circuit Court, when the matter in dispute exceeds the sum of $2000, may be re-examined here; the judge, however, who had heard the case and who allowed the writ, making this indorsement upon it:

'It was not without hesitation that the bill of exceptions was allowed, and this writ of error is now sanctioned. The writ and original declaration showed that the amount in controversy did not exceed $1000; the evidence offered on the trial by the plaintiffs showed that it did not exceed $700; and if the increase of the damages by the amendment of the declaration was intended for the sole purpose of giving the Supreme Court jurisdiction, the question is whether it ought to be allowed such effect. I however concluded that the counsel may proceed, because in this mode the question will be most conveniently presented where it will be at once and finally determined.'

The question in this court now was whether the writ could be sustained; a matter which was argued by Messrs. Lee and Fisher for the plaintiffs in error, and by Mr. Fendall contra.

Mr. Justice FIELD delivered the opinion of the court: