
    No. 288.
    The State ex rel. N. H. Boyet vs. J. T. Boone, Judge.
    In this case the plaintiff in a justice court sued for $12.40 on account. The defendant before suit filed tendered $7.28, and in his answer admitted this amount as due plaintiff. The difference is $5.12. The District Court had no jurisdiction of the appeal ratione materia.
    
    PPLIOATION for Prohibition.
    
      Watkins & Watkins for the Relator.
    
      Drew & Stewart for the Respondent.
   The opinion of the court was delivered by

McEnery, J.

This is an application for a writ of prohibition restraining and prohibiting the respondent judge from taking further jurisdiction in the cause of S. H. McCrary vs. N. H. Boyet, being suit No. 97, on the appeal docket of the Second Judicial District Court for the parish of Webster.

The plaintiff, McCrary, sued the relator in a magistrate’s court on an open account for $12.40. The defendant Boyet answered that he owed plaintiff only $7.28, and that said sum was offered and tendered to the plaintiff, which he refused to receive. It was proved on the trial that the tender had been made, and the justice gave judgment for the plaintiff for the sum of $7.28, and taxed thá costs to plaintiff, as 'the tender had been made before suit.

The suit was appealed by plaintiff to the Second Judicial District Court for the parish of Webster.

The judge of said court, on his motion, dismissed the appeal, but on a rehearing asked for by the plaintiff and appellant-, the case was-reinstated and the former ruling set aside.

The case being called for trial, counsel for defendant moved to dismiss the appeal for want of jurisdiction in the District Court, ratione materise, as there was in controversy only $5.12. The court overruled the motion.

The amount in dispute is the difference between the indebtedness-judicially acknowledged and admitted by defendant and the amount claimed by plaintiff. The amount in dispute therefore can not exceed this difference, $5.12. Had there been judgment against defendant for the whole amount sued for, he could not have appealed, as contended by defendant’s counsel, as the amount in dispute would still he the difference between the amount judicially admitted and the sum claimed by plaintiff. The District Court was therefore without jurisdiction ratione materise. Girardey & Co. vs. New Orleans, 26 An. 291; Denegre vs. Moran, 35 An. 346; Miller vs. Gildiere and Marmande, 36 An. 202; Stubbs vs. McGuire, 33 An. 1089; Guidry et als. vs. Garland, 41 An. 756.

It is therefore ordered, adjudged and decreed that the relief prayed for by relator be granted, and that a peremptory writ of prohibition issue restraining and prohibiting the respondent, judge of the Second Judicial District Court for the parish of Webster, from further proceeding in the cause of S. H. McCrary vs. H. H. Boyet, being suit No. 97 on the appeal docket of said court.  