Terry, C. J. concurring.
This action was brought originally in a Justice’s Court, where the defendant obtained judgment for seventy-six dollars and fifty-five cents costs. The demand claimed in the complaint is ninety-eight dollars and ninety-one cents. On the trial upon appeal in the County Court the plaintiff was nonsuited and judg*30ment was entered against him for ninety dollars and ten cents costs. From this judgment the appeal is taken, and the proposition presented is, whether this Court possesses any appellate jurisdiction to entertain it; and the solution of the proposition depends upon the question whether costs can properly be considered as forming any part of the matter in dispute between the parties.
Section 4 of Article 6 of the Constitution provides that “ the Supreme Court shall have appellate jurisdiction in all cases when the matter in dispute exceeds two hundred dollars; when the legality of any tax, toll, or impost, of municipal fine, is in question, and in1 all criminal cases amounting’ to felony, on questions of law alone;” and in Conant v. Conant, (10 Cal. 253,) we construed this section to mean that the Court possesses appellate jurisdiction in all cases; provided, that when the subject of litigation is capable of pecuniary computation, the matter in dispute must exceed in value or amount two hundred dollars, unless the legality of a tax, toll, impost, or municipal fine, is drawn in question. By matter of dispute, is meant the subject of litigation. It can have no other rational meaning. It is the matter for which suit is brought—the matter upon which issue is joined, and in relation to which witnesses are examined, juries are called, and the verdict is rendered. The costs are merely incidental to the suit. It is not for them the action is brought or defended, or upon them the witnesses are examined or the jury pass. We are aware of the decision in Gordon v. Ross, (2 Cal. 156,) and if any reason were wanting for overruling it as authority, aside from the inherent defect in the reasoning of the opinion, it is to be found in the practical operation of the decision, which has been, to a great extent, to destroy the limitation expressly imposed by the Constitution upon appeals to this Court, in cases under two hundred dollars. It has led to appeals in cases of money demands where the amount claimed was less than one hundred dollars, as in the present case, to the manifest departure from the intention and language of the Constitution. That instrument allows appeals when the legality of a tax, toll, impost, or municipal fine, is in question, without reference to the actual amount claimed, but in money demands under two hundred dollars, in*31volving no such question, it leaves, and we think, wisely, the remedy of the parties to their one appeal to the County Court.
Our conclusion, then, is that the costs of a suit form no part of the matter in dispute; that to the exercise of the appellate jurisdiction of this Court in cases of mere money demands not involving the legality of any tax, toll, impost, or municipal fine, the amount for which suit is brought must exceed two hundred dollars, and, as a consequence, that no appeal lies in the present case.
Appeal dismissed.