Burk Hollow Coal Co. v. Lawson

Opinion op the Court by Chief Justice Hobson Dismissing Appeal. ' James Lawson brought this suit against the Burk Hollow Coal Company to recover for coal which it had mined from his land without his consent. On the first [210] trial of the ■ case he recovered a judgment for $200, and on appeal to this court the judgment was reversed and a new trial directed. (See Burk Hollow Coal Co. v. Lawson, 151 Ky., 305.) On the return of the case he filed an amended petition in which he described his tract of land from which he alleged the coal had been taken. The defendant filed an amended answer in which it denied the allegations of the petition and pleaded in the second paragraph that the coal in controversy had been mined not by it, but by its predecessor in business, a partnership which'the corporation had succeeded. The defendant filed a reply in which he alleged that the defendant had promised and agreed to pay him for the coal which it had mined from his lands as alleged in the petition. Thereupon the defendant entered a motion that the plaintiff be required to elect whether he would sue in tort or upon the contract. The court sustained the motion, and the plaintiff elected to sue on the contract. The case was thereupon submitted to a jury, who, after hearing the evidence, returned a verdict in favor of the plaintiff for $108. The court having entered judgment upon the verdict, and refused a new trial, the defendant appeals. The plaintiff has entered a motion-to dismiss the appeal for want of jurisdiction, as the amount in controversy is less than $200. No question of title to land is involved. The plaintiff’s title to the tract of land described in Ms amended petition is conceded. The cause of action sued on is the alleged contract to pay for the coal which had been mined on the plaintiff’s land, and the sum recovered being less than $200, this court is without jurisdiction. (Cook v. Rockhouse Realty Co., 159 Ky., 710.) Appeal dismissed.