Sims v. Walshe

[782] On Motion to Dismiss. The opinion of the court was delivered by Miller, J. The defendant moves to dismiss this appeal, on the ground that the property plaintiff seeks to recover is shown by the record, it is claimed, not to be of the value sufficient to give jurisdiction to this court of this controversy. The defendant relies in support of his motion on the assessments of the property for taxes for the years 1887 to 1893 at one thousand dollars: and on the fact that shortly before the institution of this suit the property was adjudicated, at public auction for one thousand four hundred and fifty dollars, the plaintiff then being the owner and defendant, the adjudicatee, failing to comply. Assessments can not be accepted as conclusive on the question of value, and those relied on in this case carry less weight, from the fact that the same valuation, one thousand dollars, has been carried on the rolls for the past eight years. A bid at an auction as a test of value depends upon the number of persons in attendance, the competition of bidders, and other circumstances. As against the assessments and the bid of one thousand four hundred and fifty dollars, there is, in the allegation in the petition, that the property is of the value of twenty-five hundred dollars, and the affidavit of two auctioneers, familiar with property values, that, the property is of value exceeding two thousand dollars. There was no contestation in the lower court as to the jurisdiction, and in the absence of any testimony specially directed to that issue, we do not feel authorized to dismiss an appeal, always to be maintained, unless the basis to deny the right is clearly established. We have the jurisdictional allegation in the petition not controverted by any pleading. Without passing on the question of plaintiff’s right to produce in this court the affidavits as to value, admissible as a general rule when the petition does not show jurisdiction as to amount, in our opinion the allegation in the petition, on this point, is not disproved by the testimony in the record. 1 Hennen’s Digest, p. 16, Nos. 1 and 3. The brief for plaintiff states the appeal first taken to the Court of Appeals was dismissed on defendant’s motion, on the ground the petition showed the value of the property b eyond the jurisdiction of that court. The plaintiff’s case would be hard if now, on defendant’s motion, he was denied his appeal here. [783] It is therefore ordered, adjudged and decreed that the motion to dismiss is denied.