
    Black v. Ryan.
    
      Asstmpsit.
    
    (Decided June 30, 1915.
    69 South. 633.)
    1. Courts; Jurisdiction. — While the city court only has jurisdiction in actions of assumpsit when the amount in controversy exceeds fifty dollars, yet where the sum claimed by plaintiff exceeds such amount, the judgment was not rendered void for want of jurisdiction because the judgment did not exceed fifty dollars.
    
      2. Appeal and Error; Review; Presumptions. — Under section 5855, Code 1907, where a judgment for less than the jurisdictional amount is not void, it will be presumed that the court had sufficient reasons for not dismissing the cause in the absence of a bill of exceptions showing that the trial court erred in not dismissing it.
    Appeal from. Birmingham City Court.
    Heard before Hon. John H. Miller.
    Assumpsit by J. H. Ryan against H. H. Black. Judgment for plaintiff. On denial of motion to set it aside, defendant appeals. Transferred from the Court of Appeals under section 6, p. 466, Acts of 1911.
    Affirmed.
    The complaint is on the common counts. Judgment by default was entered, and the jury assessed the damages at $210. Following this judgment, defendant made a motion to set aside the judgment by default, and reinstate the cause on the docket. The grounds are meritorious defense and the absence of defendant and his counsel by an oversight of defendant’s counsel in looking over the printed docket furnished by the clerk of the court; that defendant had himself been practicing law,, but later, on leaving the city, he employed attorneys for appellant to look after all his cases, and they having employed a new stenographer, and having neglected to instruct her to look for cases in which H. H. Black appears as counsel, she did not furnish them with the cases in which he was employed as counsel. This motion was granted, and on the other trial plaintiff recovered si judgment of defendant in the sum of $50, and motion was made to set that aside on the ground that the sum recovered affirmatively appears from the judgment to have been for a less amount than that of which the court rendering it had original jurisdiction. This motion was overruled, and from it defendant appeals.
    Burgin, Jenkins & Brown, for appellant.
    Haley & Haley, for appellee,
   ANDERSON, C. J.—

It is true that the city court has only civil jurisdiction in suits like this one when the amount in controversy .exceeds $50, but the amount in controversy is the amount claimed by the plaintiff. The recovery may be reduced below the amount claimed without affecting the fact that the latter was really the subject of a bona fide claim and controversy. The sum claimed was $175, and the fact that the amount recovered did not exceed $50 did not render the judgment void as for want of jurisdiction to render same. — Haws v. Morgan, 59 Ala. 508; Sharpe v. Barney, 114 Ala. 361, 21 South. 490.

Section 5355 of the Code of 1907 provides for the dismissal of the suit, notwithstanding the amount claimed is within the jurisdiction of the court, if the amount recovered is below the jurisdiction, unless the amount is reduced by set-off successfully made by the defendant, unless the plaintiff makes an affidavit as provided by the section. The appeal in this case is upon the record, and, as the judgment is not void, in the absence of a bill of exceptions showing that the trial court erred in not dismissing the case, we must assume that the court had a sufficient ground for not doing so-. From aught that appears, there was no objection to the judgment in. the court below, and it may have been reduced by a set-off, or, if there was objection, the plaintiff may have made the proper affidavit, as required by the statute. — Camp v. Marion County, 91 Ala. 240, 8 South. 786; Wynn v. Simmons, 33 Ala. 272.

In the case of First Nat. Bank v. Pinson, 105 Ala. 588, 17 South. 182, it seems that a motion was made to dismiss the suit, and the trial court sustained the same, and there was a bill of exceptions in the appeal to this court, and this court held that the affidavit of the plaintiff did. not conform to the statute, and affirmed the judgment of dismissal. In the case of Smith v. Allen, 142 Ala. 148, 37 South. 933, a motion was made to set aside the judgment and dismiss the suit, and the amount was not reduced by set-off, and the plaintiff made no affidavit, as provided by statute, and this court reversed the tidal court for declining to dismiss the case; but the matter was presented to this court by a bill of exceptions; but the original record has been examined, and it discloses- that the question upon which the judgment w|as reversed involved an objection in the lower court, and the facts were all presented to this court by a bill of exceptions.

.The judgment of the city court is affirmed.

Affirmed.

All the Justices concur.  