Cook v. Daugherty

Whittle, J.,

delivered the opinion of the court.

This was a suit in equity in the Circuit Court of Smyth county, *592 brought by the appellant against the appellee to subject real estate to the satisfaction of a judgment for less than $500.

The property was claimed as a homestead exemption, and from a decree denying its liability to plaintiff’s judgment and dismissing the bill, an appeal was allowed by one of the judges of this coiirt.

While the jurisdiction of this court is defined by Article VI., section 2, of the Constitution, the provision does not • proprio vigore, confer jurisdiction; but the court exercises its jurisdiction, within the constitutional limitation, by virtue of statutory enactment made in pursuance of the provisions of that article.

Price v. Smith, 93 Va. 14 ; Prison Association v. Ashby, Id. 667.

The court is confronted at the threshold of the enquiry by a question of jurisdiction.

Section 3455 of the Code (amended, Acts 1887-’8, p. 17), forbids an «appeal in any case in which the controversy is for a matter less in value or amount than $500, exclusive of costs, unless there be drawn in question a freehold or franchise, or the title or bounds of land, or some matter not merely pecuniary. In the case of the Southern Fertilizer Co. v. Nelson, 6 Va. Law Journal 162, it was held that the court was without'jurisdiction, inasmuch as none of the executions sought to be enforced amounted to $500, and that “the property levied on did not constitute the matter in controversy.”

The case of Smith v. Rosenheim, 79 Va. 540 , is identical in principle with the case in judgment. It was there decided that “the test of jurisdiction in this court to sustain an appeal from a decree of the court below enforcing on land the lien of a judgment, is the amount or value of the judgment. If such amount or value fall «below $500, this court has no jurisdiction to review such decree.

“As respects jurisdiction, the case is not altered by the fact *593 that in the progress of the cause in the court below a claim of homestead in the land was asserted by the defendant.”

And so, in Thompson v. Adams, 82 Va. 672 , where several judgment creditors, with judgments each 'below $500, united in a suit to subject the lands of their common debtor, it was held that the fact that the bill sought to set aside an alleged fraudulent conveyance'of land of greater value than $500, did not give this court jurisdiction; and this principle has been repeatedly enunciated by this court. Umbarger v. Watts, 25 Gratt. 167 ; Fink v. Denny, 75 Va. 663 ; Hawkins v. Gresham, 85 Va. 34 ; Pitts v. Spotts, 86 Va. 71 ; A. & D. R. R. Co. v. Reid, 87 Va. 119 ; Patteson v. McKinney, 88 Va. 751 ; Showalter v. Rupe, 27 S. E. 840 ; Gilman v. Ryan, 95 Va. 494 .

If jurisdiction is invoked on the ground that the litigation draws in question a freehold or franchise, or the title or bounds of land or some matter not merely pecuniary, these jurisdictional matters must be directly the subject of controversy, and not merely incidentally and collaterally involved.

Thus, in Florance v. Morien, 98 Va. 26 , the court held: “ The right to subject land to the lien thereon for taxes is not a controversy concerning the title to the land, and if a decree for such taxes amounts 'to less than $500, no appeal lies therefrom to this court.

And, in Cash v. Humphreys, 98 Va. 477 , it was said: “In ,a suit to subject lands to the payment of the lien of a judgment, where the defendant appeals, the jurisdiction of this court is regulated by the amount decreed against him on the land. The Title or boundary of land’ is not involved, although the appeal be taken by one who is not the judgment debtor, and the controversy is over the liability of the land to the lien oil the judgment.”

As has been well said: “ The conclusion of the whole matter is that the true test of jurisdiction is whether the matter in controversy is or-is not of less value than $500; and in a suit to- *594 subject property to the payment of a debt the amount of the debt and not the value of the property sought to 'be subjected determines the question of jurisdiction.” 2 Bar. Chy. Pr. (2d ed.), p. 1212.

The matter in controversy here being less in amount than $500, the appeal must be dismissed for -want of jurisdiction.

Dismissed.