
    Gresham v. Kennedy.
    [91 South. 129.
    No. 22667.]
    Appeal and Error. The amount in controversy necessary to an appeal in a replevin action is determined by the value of the property.
    
    In an appeal to the supreme court under section 86, Code of 1906 (section 66, Hemingway’s Code), in an action of replevin the amount in controversy is determined by the value of the property replevied and not by the special interest of either the plaintiff or defendant therein.
    Appeal from circuit court of Benton county.
    Hon. W. A. Roane, Judge.
    Action in replevin by Marvin Gresham, trustee, against W. P. Kennedy, begun before a justice of the peace and appealed to the circuit court, which rendered a judgment for defendant, and plaintiff appealed. On motion to dismiss the appeal.
    Motion overruled.
    
      L. T. McKenzie, for the motion.
   Smith, C. J.,

delivered the opinion of the court.

This is an action of replevin commenced in the court of a justice of the peace, and the cause now comes on to be heard on a motion by the appellee to dismiss the appeal for the reason that “the judgment recovered in the circuit court was less than fifty dollars.” The affidavit on which the action was commenced before the justice of the peace alleges “that one black horse, about eight years old, named Frank, of the value of one hundred and twenty-five dollars, the property of affiant, is wrongfully detained,” etc. The judgment rendered in the court below recites that the jury having “returned into open court the following verdict: We the jury find for the defendant and fix the value of the horse at seventy-two dollars. It is therefore the judgment of the court that defendant have and recover of plaintiff and his bondsmen of record the sum of .forty-five dollars,” etc.

The appellee’s defense to the action seems to have been that he was entitled to retain possession of the horse until a lien, claimed by him thereon, to secure the payment of forty-five dollars due him, should be satisfied. The judgment rendered by the justice of the peace does not appear in the record, and, unless it should be made a part of the record before the cause is reached on its merits, the appeal will necessarily have to be dismissed, but as no point relative thereto is here'made it will not now be considered.

Section 86, Code, of 1906 (section 66, Hemingway’s Code), permits an appeal from the circuit court to the supreme court in cases originating before a justice of the peace “where the amount in controversy exceeds the sum of fifty dollars.” And in an action of replevin, the amount in controversy is determined, not by the special interest of either the plaintiff or the defendant in the property sought to be replevied, but by the value of the property itself, the right to the possession of which is in controversy. The value of the property here in controversy, whether its value be that alleged in the affidavit or found by the jury, is more than fifty dollars.

Overruled.  