Plaintiffs’ suit is for $347.34,. with 5 per cent, interest from judicial demand, amount claimed for 363 trees, measuring 99,241 feet, at $3.50 per 1,000 feet, making the total just stated.
Plaintiffs allege, in substance, that defendants have removed other timber, of which they have been unable to secure the measurement, for which they reserve right to bring suit.
The defendants admit that they removed that number of trees from plaintiffs’ land, for which they owe plaintiffs $124.05, tendered by them to plaintiffs. The tender is admitted by plaintiffs. They set forth that the trees were removed under an agreement with plaintiffs to deaden, cut, and remove all merchantable timber from certain lands at $1.25 per 1,000 feet; that annually they have moved the trees, and have been paying for them.
The district court gave judgment in favor of plaintiffs for amount admitted by defendants to be due, but refused to grant the remainder of plaintiffs’ demand for the asserted value of the timber, and from enjoining defendants from removing other trees. From this judgment plaintiffs prosecute this appeal.
Defendants, in their brief, urge for the first time that the action should be dismissed for want of jurisdiction ratione materise. There is a jurisdictional allegation in the petition of value of plaintiffs’ interest as being in excess of the minimum limit of the court’s jurisdiction. This, taken in connection with the fact that plaintiffs claim other logs have been removed, the right to recover which is reserved and taken in connection with the further fact that the judgment appealed from refused to recognize any further right in plaintiffs than those specially allowed, we are justified in holding that the court has jurisdiction.