
    CASE lS.-^ACTION BY TI-IE AMERICAN CAR & FOUNDRY COMPANY AGAINST A. L. JAMES AND OTHERS.
    Junt 17, 1910.
    American Car & Foundry Co. v. James, &c.
    Appeal from Boyd Circuit Court.
    W. C, Halbert, Circuit Judge.
    Judgment for defendants,, plaintiff appeals. On motion to dismiss.
    Granted.
    1. Courts — Court of Appeals — Jurisdiction.— Franchise. —Under Ky. St. section 950, providing that no appeal shall be taken to the Court of Appeals from a judgment for recovery of money or personal property if the value in controversy be less than $200, exclusive of interest and costs, no appeal could be taken to the Court of Appeals from a judgment for defendant in am action to recover less than $100 boom fees for catching defendant’s timber, though the action incidentally involved plaintiff’s alleged franchise- to maintain and operate the boom.
    2. Judgment — Res Judicata. — An unappealable judgment of a trial court in an action to recover boom fees that plaintiff had no franchise to operate the boom, nor authority to charge fees for catching timber floating down the stream, did not deprive plaintiff of its'franchise II it had one in fact, ncr was the judgment binding except on the parties and with reference to the subject-matter of the particular suit.
    C. B. WHEELER for appellant.
    L. T. EVERETT and DINKLE & PRICHARD for appellees.
   Opinion of the Court by

Judge Carroll

Dismissing appeal.

The motion to dismiss the appeal heretofore entered, and passed to he considered when the case came up on its merits, will now be disposed of.

These consolidated actions were originally brought by the appellant in the police court against the appellees, James and Kline, to .recover three separate amounts, aggregating less than $100. The police court dismissed the suits, and the appellant prosecuted an appeal to the quarterly court, where the same judgment was rendered; and thence to the circuit court. This appeal is from the judgment of the circuit court denying the appellant’s right to recover.

The actions are for the recovery of money alone, and, as section 950 of the Kentucky Statutes provides that “no appeal shall be taken to the Court of Appeals from a judgment for the recovery of money or personal property if the value in controversy be less than two hundred dollars, exclusive of interest and cost,” the appeal must be dismissed, unless the fact that because the validity of what is called a franchise is incidentally involved confers jurisdiction.

It appears from the record that the appellant obtained, or attempted to obtain, from the Johnson county fiscal court the right to establish, a boom in John’s creek, and to charge for catching timber in its boom fees specified, in the order of court. Under authority of this order of .court, as well as- by virtue of an act 'of the Legislature approved February 27, 1882 (Laws 1882, c. —), the appellant established its boom, and sought in these actions to recover from the appellees the fees allowed to be charged-by it for catching timber owned by the appellees. The circuit court in a written opinion held that the appellant had no authority either under the act of the Legislature or the order of the fiscal court to charge “boom-age” fees, and upon this ground dismissed the actions. As we have reached the conclusion that the appeal must be dismissed for want of jurisdiction, it is not necessary to, and we do not, express any opinion upon the question whether or not the appellant company has a franchise or the right to charge “boomage” fees. The fact that the validity of-an act of the Legislature, as well as the validity of an order of the fiscal court, which it is claimed granted a franchise, áre involved, does not confer jurisdiction of this appeal. In C., N. O. & T. P. Ry. Co. v. Lawrence, 102 S. W. 298, 31 Ky. Law Rep. 429, we said: “The fáct that the court is asked to construe a statute or to reconcile statutory-provisions claimed to be conflicting, or to determine the ■ validity of á statute, does not- confer jurisdiction in cases involving simply the recovery of money or personal -property where the amount in controversy ■ is less- than $200 exclusive of interest and costs. The jurisdiction of this court is altogether a creation of the statute. And, whilst it would perhaps be well for the Legislature to authorize appeals to this court without reference to the amount in ■ controversy where the validity or construction of a statute was directly drawn in question, this is a matter that addresses itself .entirely to the consideration of the legislative department of the state.” To the same effect is Krish Co. v. Rigsby, 121 S. W. 479; Spalding v. Wathen, Mueller & Co., 136 Ky. 495, 124 S. W. 791; Town of Beaver Dam v. Stevens, 118 S. W. 320; C. & O. Ry. Co. v. Commonwealth, 116 S. W. 323.

Under the Revised Statutes this court had jurisdiction “where the order, judgment or decree relates Lo an office, franchise or freehold.” But these words were left out of the General Statute adopted in 1873, which was substantially the same as the present statute, except as to the amount in controversy. Under the present statute, it has been uniformly held that unless the title to or a lien upon land was involved, or jurisdiction was conferred by a special statute, there could be no appeal to' this court, in- an action for the recovery of money or property alone, if the amount in controversy exclusive of interest and cost was less than $200. Jurisdiction of cases in which it is sought to enforce a lien upon land is not conferred by the statute, although jurisdiction where the title to land is involved is, but, as said in Smith v. Catlin, 63 S. W. 473, 23 Ky. Law Rep. 381: “This court has been uniformly holding for a number of years that, where a lien is asserted upon land, the title is brought in controversy, and the court has jurisdiction regardless of the amount of the claim asserted or adjudged. Whether the court was in error in so holding it is too late now to consider.”

If we should hold that we had jurisdiction in cases involving alone the recovery of money where the amount in controversy was less than $200 merely because the validity of the franchise was incidentally drawn in question, there is no reason why the jurisdiction should not be- further extended to include cases in which other kinds of personal property were involved, as, for instance, where it was sought to enforce an attachment lien for $100 upon a horse worth $500, or a mortgage lien for $150 upon a stock of goods worth $300. In many actions for the recovery of money it may happen that there will be affected personal property of the valne of more than $200, bnt this condition will not confer jurisdiction upon this court. If it did, the docket would be incumbered with many cases for the recovery of money or property in which the amount in controversy would be less than that fixed by the statute. If the Legislature had intended to confer jurisdiction upon this court in cases for the recovery of money, in which the validity of a franchise or an ordinance or act of the Legislature or a provision of the. Constitution was involved, it would have so declared. Of course, a case 7night be brought here in which the only question would be the validity of a franchise. Such a case would not be- a suit to recover either money or property, and so we would have jurisdiction. Ex parte Herrick, 78 Ky. 23; Shackelford v. Phillips, 112 Ky. 563, 66 S. W. 419, 68 S. W. 441, 24 Ky. Law Rep. 154; Cincinnati Packet Co. v. Malone, 92 S. W. 306, 29 Ky. Law Rep. 44. The same rule would obtain in an action involving the right to an -office or in any other case that wa's not distinctly an action to recover money or personal property or where the recovery of the money was a mere incident and not the chief thing involved, as in Johnson v. Commonwealth, 90 Ky. 53, 13 S. W. 520, 12 Ky. Law Rep. 20, where the court said, in taking jurisdiction of an appeal on behalf of the defendant who was fined $10 and deprived of the right to vote or hold office, “the deprivation of such a right will be treated in this court as a direct proceeding to deprive the offender of the rights of a citizen.” But it would be going a far way after jurisdiction to say in this case that, because there is involved in a collateral way property worth more than $200, therefore we will look back of the case before us and take jurisdiction. Skipswith v. Young, 5 Munf. (Va.) 276; Hutchinson v. Kellan, 3 Munf. (Va.) 202.

The fact that the appellant was defeated on account of the ruling of the lower court that it had no franchise does not by any means deprive it of its franchise, if it has one. The judgment of the circuit court in the case appealed from is only the law as to the case in which it was rendered and between the parties to that litigation. It would not be binding in the future on that court, or on other courts in an action between the appellant and appellees or other parties. It may be that the circuit court which rendered the decision and other inferior courts in that jurisdiction will follow the ruling of the circuit court in this case in other suits that may be brought against other parties, and thereby deprive the appellant' company of the right, if-it has the right, to collect “boom-age” fees in cases in which the judgment of the circuit-court would be final, -but, if so, it will be as a matter' of courtesy,- and not because 'the judgment in this case is res judicata.- But, if this’ should happen, it cannot be allowed to confer jurisdiction upon this court. We said in Town of Beaver Dam v. Stevens, 118 S. W. 320, in which it was argued that we should take jurisdiction although the amount in controversy was less- than $200, because the circuit court' in other similar cases between the same parties^ would render a judgment like the one'assailed: “We areunable to perceive how this circumstance can be considered to give this court jurisdiction of the pending- appeal. The amount sought .to be recovered, and for which the judgment was rendered, is the amount that determines the jurisdiction of this court. What the result of. future trials may be, or what effect the decision of the lower court in this case may have on ether cases, cannot in our opinion invest ns with jurisdiction of ah appeal in which the amount in controversy is less than the sum necessary to give this court .jurisdiction.”

The motion to dismiss the appeal must he sustained.

Hobson, J., dissenting.  