
    Fox v. Duncan.
    1. Appeal to Supreme Court: jurisdiction: amount in controversy: how determined. Where the petition claims $70, and a counter-claim filed by the defendant claims $57, this court has no jurisdiction to entertain the cause upon an appeal, without the certificate required in cases involving less than $100. The amount in controversy cannot be ascertained by adding the amount claimed in the counter-claim to the amount claimed in the petition. Following Madison v. Spitznogle, 58 Iowa, 369.
    
      Appeal from Adair Ci/rcuit Court.
    
    Friday, December 15.
    Action in attachment upon two promissory notes. The defendant admitted the execution of the notes, but pleaded, by way of counter-claim, damages for breach of warranty in the sale of a horse, and for wrongfully suing out the attachment and expenses incurred in defending against the same. He asked judgment for $57, and costs. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff for $1.37 damages, and $80.25 costs. The jury having found that the attachment was wrongfully sued out, the court rendered judgment against the plaintiff for $20 as attorney fees taxed as costs. Both parties appeal. The defendant perfected .his appeal first.
    
      Gow da Ilager, for appellant.
    
      Grass & Story, and McCaughan, Dabney c6 McCaughan, for appellee.
   Adams, J.

The defendant insists that this court has no juisdiction upon either appeal,'because the amount in controversy is less than $100, and no question of law is certified as required by Sec. 3173 of the Code.

The amount for which a recovery is claimed by the plaintiff is about $70. The amount for which a recovery is claimed by defendant is $57. In the absence of a certificate, this court has no jurisdiction, unless the amount in controversy exceeds $100, as shown by the pleadings. The amount in controversy does not exceed $100, as shown by the pleadings, unless we .can say that the amount in Controversy is the amount for which the plaintiff claims a recovery, added to the amount for which the defendant claims a recovery.

A question arose in Madison v. Spitznogle, 58 Iowa, 369, in regard to the jurisdiction of the court in the absence of a certificate. The question presented was as to whether the amount in controversy exceeded $100. The amount claimed by the plaintiff was $60. The defendant not only controverted his claim, but pleaded a counter-claim of $50. It was held that the amount in controversy was not the sum of the two amounts claimed by the plaintiff and defendant respectively. It appears to us that, under the rule adopted in that case, it must be held that the amount in controversy in the case at bar does not exceed $100. If we could not properly add the two amounts in that case, we cannot in this. It is true that in this case the defendant may be understood as conceding the correctness of the plaintiff’s claim, and as asking judgment for the excess of his claim over that of the plaintiff’s. ■ In this view, the defendant’s real claim against the plaintiff might be regarded as equal to the sum of the two, and that, as such claim is disputed, the amount in controversy should be regarded as the amount of such claim. But it will be seen at once that the rule for which the defendant contends is, in substance, the same as that which was disapproved in Madison v. Spitznogle, above cited. In our opinion, both appeals must be

Dismissed.  