Rector v. Lipscomb

Suit by Henry M. Rector against Matilda Lipscomb to declare a trust in lands, and to secure a conveyance thereof. Bill dismissed, and plaintiff appeals. Heard on motion to dismiss the appeal.

The facts of the case fully appear in the following statement by Mr. Justice BREWER:

On April 29, 1884, appellant filed his bill in the circuit court of the United States for the eastern district of Arkansas, alleging that he was the equitable owner of lot 10, in block 125, in the town of Hot Springs, Ark.; that the legal title stood in the name of defendant; and praying that she be adjudged a trustee for his benefit, and ordered to convey the premises to him. On the final hearing a decree was entered, dismissing the bill. Nearly two years thereafter, without notice to the appellee, and on the single affidavit of appellant that the property was worth over $5,000, an appeal was allowed. Subsequently, and at the same term, the appellee filed in the circuit court a motion to set aside the order allowing an appeal, and, to sustain her motion, the affidavits of 16 citizens of Hot Springs, among them the collector of taxes and sheriff and several real-estate brokers, showing that the value of the property was not to exceed $3,500, and probably not over $2,500. Upon this testimony the circuit court made an order setting aside and vacating the allowance of an appeal, with leave to the appellant to renew his motion therefor, and file additional affidavits as to the value of the property. Appellant took no further action. Prior, however, to the filing of this motion, the citation had been served on appellee, and the record filed in this court. The appellee now moves to dismiss the appeal on the ground that there is not $5,000 involved in the controversy.

A. H. Garland and H. J. May, for appellant.

John McClure, for appellee.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.