
    TERRITORY OF NEW MEXICO v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY.
    APPEAL PROM THE SUPREME COURT OP THE TERRITORY OP NEW MEXICO.
    No. 182.
    Argued January 26, 1906.
    Decided March 12, 1906.
    Plaintiff sued in the District Court of a Territory for several items and recovered judgment for less-than amount sued for but over $5,000 with interest at six per cent. Defendant alone sued out writ of error from the Supreme Court of the Territory which disallowed $4,880 of the judgment including interest at six per cent. Plaintiff then appealed to this court and prayed for reinstatement of the District Court judgment and, when the ease was reached for hearing here, assigned as additional error that the District Court had not allowed twenty-five per cent instead of six per cent interest which would have made the amount disallowed exceed $5,000. Held, that as plaintiff had not complained of the District Court judgment the only matter in dispute was that part of the District Court judgment which was disallowed by the territorial Supreme Court and as that was less than $5,000 . the appeal to this court could not under the act of March 3, 1885, 23 Stat.- 443, be maintained.
    The facts are stated in the opinion.
    
      Mr. Frank W. Clancy, with whom Mr. A. H. Harlee was on the brief, for appellant.
    
      Mr. Robert Dunlap, with whom Mr. H. L. Waldo, Mr. R. E. Twitchell and Mr. Gardiner Lathrop were on the brief, for appellees.
   Mr. Chiep Justice Fuller

delivered the opinion of the court.

The Territory of New Mexico commenced three separate actions against appellees, respectively, in the District Court of Grant County, New Mexico, to recover taxes alleged to be due on a levy to pay certain judgments against the county, including a particular item of $276.21, arising from the increase of the valuation of the property of the railroad companies. The. aggregate amount claimed ivas $8,646.49 with interest at the rate of twenty-five per cent per annum.- The cases were consolidated and submitted to the District Court on an agreed statement of facts with exhibits attached, a jury being waived, and resulted in a judgment, October 9, 1902, for $5,156:71, with interest at six-per cent per annum. This included the $276.21 with interest. Appellees sued out writs of error from the Supreme Court-of the Territory. No cross writ of error was brought'-and no cross errors were assigned. In the Supreme Court the item of $276.21 with interest was not contested.' February 26, 1903, the Supreme Court announced its conclusion that the judgment be reversed, but as the item of $276.21 was not contested, rendered judgment for that amount, thereby .rejecting the sum of $4,880.50 of the judgment below, that sum . with interest at six per cent amounting to less than five thousand dollars on that date. 72 Pac. Rep. 14. From the judgment so rendered the Territory prosecuted an appeal to .this court, under the act of Congress in that behalf, January 17, 1905, and prayed in its assignment of errors that the judgment of the Supreme Court be .reversed and set aside, and the cause be “ remanded to said Supreme Court, with directions to affirm the judgment of the T)istrict Court of Grant County. ” The appeal was heard in this court on January 26, 1906, and on that day appellant filed an additional assignment of errors to the effect that the Supreme Court of New Mexico erred in failing to hold that appellant was entitled to interest at the rate of twenty-five per cent per annum from October 9,1902. But the judgment of the District Court gave interest at six per cent, and, as before stated, the Territory did not complain of that judgment as rendered.

By the act of March 3, 1885, 23 Stat. 443; c. 355, no appeal or writ-of error could be allowed from any judgment or decree of the Territorial Supreme Courts, witli certain exceptions not material here, “unless the matter in dispute, exclusive of costs, stall exceed the sum of five thousand dollars. ” The matter in dispute here was that part of the judgment of the District Court which was disallowed by the Supreme Court and that was less than five thousand dollars.

Appeal dismissed.  