Cabot v. McMaster

JENKINS, Circuit Judge. The plaintiff brought suit in the court below in debt upon a bond in the penalty of $6,000, averring breaches to his damage $6,000, etc. The defendant pleaded (1) nil debet; (2) [534] a traverse of the^breaches assigned; (3) performance and payment.' Issue was joined* by similiter to the first plea, and by replications concluding to the country as to the other pleas. At the trial before the court without a jury, the plaintiff put in evidence the bond and the agreement therein referred «to, and gave evidence tending to prove an indebtedness thereunder of $1,496. The defendant gave evidence tending to prove an extension of time of credit to the person for whom the plaintiff was bound, and the plaintiff, in rebuttal, gave evidence tending to prove that such extension was with the knowledge and concurrence of the defendant. The court thereupon, with; out passing upon the merits of the controversy, dismissed the causé for want of jurisdiction, upon the ground that the amount in controversy was less than the minimum amount necessary to give jurisdiction to the court. Cabot v. McMaster, 61 Fed. 129. We are without jurisdiction to entertain this writ of error. The dismissal of the suit proceeded solely upon the ground of want of jurisdiction, and there was no adjudication upon the merits. We have held in Manufacturing Co. v. Barber, 18 U. S. App.-, 9 C. C. A. 79, and 60 Fed. 465, that, when the only question presented by the record goes to the jurisdiction of the court below, a review of the determination of that question can only be had in the supreme court. See, also, Railroad Co. v. Meyers, 18 U. S. App.-, 10 C. C. A. 485, and 62 Fed. 367. The writ of error is dismissed for want of jurisdiction.