This was a bill of interpleader filed by Charles D. Gilmore against Benjamin S. Hilton, William H. Dickinson, John Devlin, and others, to determine the ownership of $2,500, which Gilmore held as trustee. The fund was paid into court, and when the decree below was rendered had increased by investment to more than $3,000. Hilton, Dickinson, and Devlin each claimed the whole. The court, at special term, decreed the whole to Hilton. From this decree both Dickinson and Devlin appealed to the general term. There the decree at special term was modified so as to direct the payment of the fund to Hilton and Dickinson in equal moieties, and to adjudge the costs against Devlin alone. Hilton took an appeal to this court from this decree, 'in so far as it modifies the decree of the court below, to-wit, the special term in equity,' and citation was issued to Dickinson alone. This appeal was docketed here in due time. An appeal was also allowed Devlin at the time the decree was rendered, but that appeal has never been entered in this court. There was no appearance of counsel or security for costs within the time required by law. Dickinson now moves to dismiss the appeal of Hilton, on the ground that the value of the matter in dispute does not exceed $2,500, and to docket and dismiss under the ninth rule the appeal of Devlin. Devlin also appears by counsel, and presents an assignment to him from Dickinson of all interest in the litigation, which was executed before the decree was modified at general term. He, therefore, insists that Dickinson has no right to move in the premises, and asks that the appearance of his own counsel be entered.
The opinion of the court was delivered by: Nothing further of importance connected with the particular question we are now considering appears in the reported cases until 1844, when, in Knapp v. Banks, 2 How. 73, which was a writ of error brought by a defendant against whom a judgment had been rendered for less than $2,000, Mr. Justice Story said for the court:
Frank W. Hackett, for Dickinson.
M. F. Morris, for Devlin.
[Argument of Counsel from page 167 intentionally omitted]
F. P. B. Sands, for Hilton.
At the last term, in the case of The S. S. Osborne, 105 U. S. 451, it was decided that 'cross-appeals must be prosecuted like other appeals. Every appellant, to entitle himself to be heard on his own appeal, must appear here as an actor in his own behalf by having the appearance of counsel entered, and giving the security required by the rules.' In that case the appeal had been docketed, but long after the time when by law it should have been done, and, following the rule announced in Grigsby v. Purcell, 99 U. S. 505, it was dismissed for want of prosecution. Inasmuch, therefore, as we would not hear the cross-appeal if it should be entered at this time, we deny the motion of Devlin to have the appearance of counsel entered on that appeal, and of our own motion dismiss it for want of prosecution. It is a matter of no importance that the motion to dismiss the appeal of Hilton is made by Dickinson after he has parted with his interest in the decree, for if, on looking into a record, we find we have no jurisdiction, it is our duty to dismiss on our own motion without waiting the action of the parties. The question is then presented whether upon the face of this record it appears that the value of the matter in dispute, for the purpose of our jurisdiction, exceeds $2,500, and that depends on whether the 'matter in dispute' is the whole amount claimed by Hilton below, or only the difference between what he has recovered and what he sued for. So far as we have been able to discover, this precise point has never before been passed upon in any reported case. There are expressions in the opinions of the court in some cases which may be, and probably are, broad enough to sustain the jurisdiction, but these expressions are found where the facts did not require a decision of the question now formally presented.
In Wilson v. Daniel, decided in 1798, and reported in 3 Dall. 401, upon a writ of error brought by a defendant below from a judgment against him for less than $2,000, it was held that the jurisdiction of this court depended, not on the amount of the judgment, but 'on the matter in dispute when the action was instituted.' Chief Justice ELLSWORTH, in his opinion, said:
'If the sum or value, found by a verdict, was considered as the rule to ascertain the magnitude of the matter in dispute, then, whenever less than $2,000 was found, a defendant could have no relief against the most erroneous and injurious judgment, though the plaintiff would have a right of removal and revision of the cause, his demand (which is alone to govern him) being for more than $2,000. It is not to be presumed that the legislature intended to give any party such an advantage over his antagonist; and it ought to be avoided, as it may be avoided, by the fair and reasonable interpretation, which has been pronounced.'
Mr. Justice IREDELL, in a dissenting opinion, thus states the argument on the other side:
'The true motive for introducing the provision, which is under consideration, into the judicial act, is evident. When the legislature allowed a writ of error to the supreme court, it was considered that the court was held permanently at the seat of the national government, remote from many parts of the Union, and that it would be inconvenient and oppressive to bring suitors hither for objects of small importance. Hence, it was provided, that unless the matter in dispute exceeded the sum or value of $2,000, a writ of error should not be issued. But the matter in dispute here meant, is the matter in dispute on the writ of error.'
In Cooke v. Woodrow, 5 Cranch, 13, decided in 1809, trover had been brought in the circuit court of the District of Columbia for sundry household goods, and the judgment was in favor of the defendants. Upon a writ of error by the plaintiff below, a question arose as to the way in which the value of the matter in dispute should be ascertained, and Chief Justice MARSHALL, in announcing the decision, said: 'If the judgment below be for the plaintiff, that judgment ascertains the value of the matter in dispute; but when the judgment below is rendered for the defendant, this court has not, by any rule or practice, fixed the mode of ascertaining that value.'
Three years afterwards the case of Wise v. Columbian Turnpike Co. was before the court, which is very imperfectly reported in 7 Cranch. 276. On referring to the original record we find that under a provision of the charter of the turnpike company (2 St. 572, c. 26, § 6) commissioners were to be appointed by the circuit court of the District of Columbia to decide upon the compensation to be paid the owners of land for damages growing out of the appropriation of their property to the use of the company. All awards of the commissioners were to be filed in the circuit court, and, unless set aside by the court, were to be final and conclusive between the parties, and recorded by the clerk. Wise & Lynn presented a claim to the commissioners, and were awarded $45. On the return of the award to the court they filed exceptions, and, among other things, claimed that they should have been allowed at least $300, but the court confirmed the award. They then brought the case to this court by writ of error, and the turnpike company moved to dismiss because the value of the matter in dispute did not exceed $100, that being then the jurisdictional limit on appeals and writs of error from the circuit court of the District of Columbia. The decision of the case is reported as follow: 'It appearing that the sum awarded was only $45, the court, all the judges being present, decided that they had no jurisdiction, although the sum claimed by Wise & Lynn, before the commissioners of the road, was more than $100.' In Peyton v. Robertson, 9 Wheat. 527, replevin had been brought for the recovery of personal property distrained for rent. The defendant in the action acknowledged the taking of the goods as charged in the declaration, but justified it as a distress for the sum of $591, due for rent in arrear, and recovered a judgment against the plaintiff for that amount. The plaintiff then brought the case to this court by writ of error, and insisted that as the damages laid in the declaration exceeded the jurisdictional limit his writ ought not to be dismissed; but the court said, through Chief Justice MARSHALL: 'If the replevin be, as in this case, of property distrained for rent, the amount for which the avowry is made is the real matter in dispute. The damages are merely nominal. If the writ be issued as a means of trying the title to property, it is in the nature of detinue, and the value of the article replevied is the matter in dispute.' The writ of error was accordingly dismissed.
The case of Gordon v. Ogden, 3 Pet. 33, was decided in 1830. There the action was instituted for the violation of a patent, and the amount of the recovery in damages was $400 by the verdict of a jury. The damages laid in the declaration were $2,600. The defendant brought the writ of error, and on a motion to dismiss because the value of the matter in ...