Butler v. Penn

Gill, J. The only point urged in this case by appellants, and necessary to be considered by this court, is one of jurisdiction. Did the United States court have jurisdiction to try the cause, it being an appeal from the United States commissioner’s court, and there being no judgment in the cause, unless a judgment for costs? In the Act of March 1, 1895, congress provided that “appeals may be taken to the United States court in the Indian Territory in said districts, respectively, from the final judgment of said commissioners, acting as justices of the peace, in all cases; and such appeals shall be taken in the manner that appeals may be taken from the final judgments of the justices of the peace under the provisions of said chapter 91, in civil cases, * * * of the Laws of Arkansas: provided, that no appeal shall be allowed in civil cases where the amount of the judgment in civil cases, exclusive of costs, does not exceed twenty dollars.” Ind. T. Ann. St. 1899, c. 41. In [507] the case at bar, if there was a judgment at all, certainly there was none which exceeded $20 exclusive of costs, and the district court was without jurisdiction on appeal to try the case. The question of jurisdiction may be properly raised in this court for the first time, but it is not the most commendable practice for attorneys to discover and raise questions of jurisdiction in this court for the first time, when, if raised in the court below at the time of presentation of .the case, the necessity of an appeal to this court would probably not exist. This question was passed upon in this court in Morrow vs Burney, 2 Ind. T. 440 (51 S.W. 1078,) and other cases referred to therein. We are clearly of the opinion that the court below was without jurisdiction to try this cause, and therefore its judgment is reversed, and the cause remanded, with directions to dismiss the appeal from the commissioner’s court. Clayton, C. J., and Thomas and Townsend, JJ. concur.