The plaintiff brought this action to recover of defendant damages for a trespass on his land, and tearing down and removing a fence therefrom, and leaving his pasture land uninclosed, whereby he avers that he has suffered damage to the amount of nine hundred dollars. The defendant in his answer admitted the title of the plaintiff to the land on which the wrongs are alleged to have been committed. On the trial the jury rendered a verdict for plaintiff for two hundred dollars, on which judgment was accordingly entered. The defendant moved for a new trial, which was denied, and *654he appealed from the judgment and order denying a new trial. Respondent moves to dismiss the appeal on the ground that this Court is without jurisdiction, as the judgment appealed from is less than three hundred dollars.
By the 4th section of Art. vi of the Constitution it is provided that this Court “shall have appellate jurisdiction in all cases in equity, except such as arise in Justice’s Courts; also in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars,” etc., etc. The remainder of the section has no application and is therefore not inserted. The statute in relation to the appellate jurisdiction of this Court, as far as concerns this cause, follows the language of the Constitution. (C. C. P., § 52.)
It wiR be seen from the above that the title to the land was not involved in the action, as the defendant admitted the title of plaintiff.
The portion of the section of the Constitution above referred to, which is invoked by counsel for the motion, is that which relates to the demand, value of the property in controversy. It is prescribed that the demand, exclusive of interest shall amount to three hundred dollars, or the value of the property in controversy shall amount to three hundred dollars, in order that this Court may exercise its appellate jurisdiction.
The Constitution of this State, as amended in 1862, (see Art. vi, Sec. 4, of that instrument), contained language as to the jurisdiction of the Supreme Court as to these matters, identical with the present Constitution. That language was construed in the case of Solomon v. Reese, 34 Cal. 33. The plaintiff in the case cited had judgment for three hundred dollars, and thirty-two dollars and sixty-one cents interest. He appealed, and the question was raised as to the appellate jurisdiction of the Supreme Court under the amendment of 1862. The Supreme Court sustained the jurisdiction, considered the cause on its merits and decided it. The Court, per Sanderson, J., used this language:
“ The point made by the respondent, that this Court has no *655jurisdiction, is not tenable. In actions for the recovery of money, this Court has jurisdiction, ‘if the demand, exclusive of interest, amounts to three hundred dollars.’ (Const. Art. vi, Sec. 4.) The demand, exclusive of interest, in this case, amounts to five hundred and fifty dollars. The language of the Constitution in respect to the jurisdiction of this Court is the same as it is in respect to the jurisdiction of the District Court, and there can be, therefore, no difference in the rules by which questions as to the jurisdiction of the subject matter are to be determined in the two Courts. For the purpose of ascertaining whether the District Court has jurisdiction, we look to the complaint, and in this class of cases, if the sum sued for amounts to three hundred dollars, exclusive of interest, that Court has jurisdiction, and by parity of reason, this Court has jurisdiction on appeal. The amount sued for, exclusive of interest, is the test of the jurisdiction of this Court, as well as of that of the District Court, regardless of the judgment of the latter Court. We dissent entirely from the dictum of the Court in the case of Votan v. Reese, 20 Cal. 90, to the effect that where the plaintiff recovers in the District Court less than he sues for, the test of the jurisdiction of this Court, in the event the plaintiff appeals, is the difference between the judgment of the District Court and the demand made in the complaint, exclusive of interest. All civil cases which the District Courts have jurisdiction to try, this Court has jurisdiction to review, no matter what the judgment of the District Court may have been. If the plaintiff sues to recover a demand for five hundred dollars, and the District Court gives him a judgment for three hundred only, his demand does not thereby become converted into a demand for two hundred dollars, for the purposes of an appeal, should he be dissatisfied with the judgment and desire to bring his case to this Court. On the contrary, in the sense of the Constitution, his demand in this Court is precisely the same that it was in the Court below, and is to be ascertained by looking to the complaint and not by deducting the judgment of the District Court from the demand alleged in the complaint. In other words the ad damm/mi clause in the complaint is the test of jurisdiction in this Court as well as in the Court below. (Maxfield v. Johnson, 30 id. 546.)”
*656The same rule is laid down by the same Court in Maxfield v. Johnson, 30 id. 546. But that was a case arising in a Justice’s Court, and it does not appear that the point so clearly arose as in Solomon v. Reese.
The same point was made in Pennybecker v. McDougal, 48 Cal. 161, but the Court paid no attention to it in rendering its judgment in the cause, no doubt deeming it so well settled by the former decisions that it deserved no further consideration. In the last case the plaintiff sued to recover property alleged to be of the value of four hundred dollars. He had judgment for a return of the property, and if a return could not be had, then for its value, assessed at two hundred and twenty-five dollars. The defendant appealed. The Court heard the case, and reversed the judgment, and remanded the cause with an order to the Court below to modify the judgment by reducing the damages to seventy-five dollars.
The rule settled by these cases is that the amount sued for, exclusive of interest, is the test of jurisdiction in this Court as in the former District Court (and the same may be said now of the jurisdiction of the Superior Court) in all cases where actions are brought to recover money.
It is true that this was said in a case (Solomon v. Reese) where the plaintiff appealed, but we are of opinion that the same rule is correct where the defendant appeals. The demand referred to in the Constitution and the statute, is the amount sued for in the action, exclusive of interest. The defendant makes no demand, unless probably, when he sets up a counter-claim. The plaintiff makes the demand, and the defendant only seeks to be relieved from the plaintiff’s demand. In the case before us the demand is nine hundred dollars, expressed in the ad damnum clause.
Our judgment is that this Court has appellate jurisdiction in this case. The cases cited by counsel for respondent were made under Constitutions or statutes in which the provisions on this matter were manifestly different from our Constitution and statute.
Gordon v. Ross, 2 Cal. 156; Doyle v. Seawall, 12 id. 280; Votan v. Reese, 20 id. 90, were decided under the Constitution of 1849, and that Constitution provided that the Supreme Court should have appellate jurisdiction in all cases where *657“the matter in dispute” exceeded two hundred dollars. These cases, so far as they are in conflict with the decision here, are governed by the words “matter in dispute” and the matter in dispute where the defendant appealed, was held to be the amount of the judgment recovered against him in the Court below. It will be observed that the Constitution of 1849 did not exclude interest in fixing the appellate jurisdiction of the Supreme Court. (Votan v. Reese, 20 Cal. 89; see also Dunphy v. Guindon, 13 id. 28; Zabriskie v. Torrey, 20 id. 173; Meeker v. Harris, 23 id. 286.)
Bolton v. Landers, 27 Cal. 106, though under the Constitution as amended in 1862, has no application. Gillespie v. Benson, 18 id. 409, was an appeal by plaintiff and it was sustained. The action was brought in the District Court, and the plaintiff sued for four hundred and sixty dollars, for goods sold and delivered. Under all the Constitutions such appeal would be entertained.
The language is also different in the statutes as to the other cases cited by the respondent’s counsel. (Melson v. Melson, 2 Munf. (Va.), 542; Tipton v. Chambers, 1 Metc. (Ky.), 565; Walker v. United States, 4 Wall, 163.) In those cases the words were “ matter in controversy” (1 Rev. Code Va., 198), or “value in controversy” (Stats. of 1857-58 of Ky., p. 58), or “matter in dispute.” This last was the language used in the Act of Congress under which the appeal was prosecuted. (4 Wall, 163.)
The rule laid down in Solomon v. Reese, meets our approval. It is just and equitable, as it accords to both plaintiff and defendant an equality of right in prosecuting appeals.
No property is in controversy here and the clause in relation to the value of the property in controversy need not be considered.
We have examined the errors assigned and find the ruling of the Court in regard to them correct..
There was evidence on all the issues on which the jury was to pass. There was some conflicting evidence, but we can not reverse on this account.
The motion to dismiss is overruled. Judgment and order affirmed.
*658McKee, Ross, and McKinstry, JJ., concurred.