The defendant in error has filed a motion to dismiss the writ of error for want of jurisdiction, on the ground that the value of the matter in controversy does not exceed $5,000, and in support thereof has filed the affidavits of himself and five others that the reasonable rental value of the land is not more than $620 per annum. The plaintiff in error contends that the matter in dispute is in fact not the possession of the land, but the ownership, and at the time the writ of error was allowed he filed the affidavits of four persons; one, his counsel, who testified that the action involved both the possession and the ownership of the lands, that the matter in controversy exceeded in value the sum of $6,000, that the value consisted in the right of possession and power to relinquish to the government the homestead entry; the others, who stated that the value of such relinquishment was $8,000 or $8,500. The record shows that in the answer was this averment: 'That said land, with the improvements of the defendant thereon, is reasonably worth, and the relinquishment thereof could be sold for, the sum of $5,000; that this defendant demands the right to remain in possession of said land by virtue of her vested interest therein, and as against the claims of said plaintiff under his void and unlawful homestead entry, in order to protect the limited title which defendant has acquired in said land, and to acquire a perfect legal title therein, under and by virtue of the laws of the United States;' and also that on the trial she testified that the value of the land was $5,000. In her answer she set up facts which she insisted showed that she had an equitable right to the land, and averred that she intended, as soon as the patent was issued to the plaintiff, to begin an action in the proper court to have the same declared a title in trust for her benefit, and asserted that by reason thereof an action of forcible entry and detainer could not be maintained against her. The supreme court of the territory, in affirming the judgment, held that the matter in controversy was simply the right of possession. It closed its opinion in these words:
'This court, in the case of Kirtley v. Dykes, 10 Okla. 18, 62 Pac. 808, says: '. . . When the matter was finally decided by the Land Department, and a judgment rendered in favor of the plaintiff, her right to the possession of the premises was completed.' Armour Packing Co. v. Howe, 62 Kan. 587, 64 Pac. 43; Wideman v. Taylor, 63 Kan. 884, 65 Pac. 664. The entire theory of this action is that it is purely possessory; that it deals with the possessory rights, and not the ultimate rights, of the parties. Questions other than the immediate rights of the parties cannot be litigated in such action. If the party desires to have an adjudication on her right to a resulting trust in the land, she must resort to another forum and another form of action.'
Affidavits on the motion to dismiss show the value of possession to be not more than $640 per annum. Her own allegation in the answer is that the land and the relinquishment thereof were reasonably worth $5,000. Her testimony on the trial, and there was none other, was that the land was worth $5,000. Affidavits of witnesses assert that the ownership was in controversy, and that the value of that ownership with the right of relinquishment was in excess of $5,000.
Upon these facts, we think the motion to dismiss should be sustained. The matter in dispute being only the possession, clearly the value of that possession was but a few hundred dollars. Even if the title had been in controversy, the record up to the time of the decision of the supreme court showed that there was not exceeding $5,000 in controversy. The supreme court held that the matter in dispute was only the right of possession, and that right of possession was all that it decided. If the question of title was involved an action of forcible entry and detainer could not have been maintained, and the probate court had no jurisdiction of an action of ejectment. But before we can inquire whether the supreme court committed any error in its decision, it must appear that we have jurisdiction of the case. Now, whether the supreme court erred in permitting this forcible entry action to be maintained involves an inquiry whether it erred in permitting an action to be maintained in respect to something whose value is less than $5,000. If that which alone could be in contest in the action, and which alone was determined by the judgment, is of a value less than $5,000, then it is beyond our jurisdiction to inquire whether the court erred in permitting the action to be maintained.