Dissenting Opinion.
Pociní, J.I cannot concur in the dismissal of the appeal in this case.
The Constitution (Art. 81) vests this Court with jurisdiction over all cases in which the fund to be distributed, whatever he the amount therein claimed, shall exceed two thousand dollars.
From the final account of administration presented by the executor, it appears that the fund to be distributed amounted to $6629.
It has been so often said by this Court, even as at present composed, thatitmaybe considered as elementary, that the jurisdiction of the appellate tribunal must bo tested exclusively under the showing made by the pleadings, and that it cannot be affected by the judgment rendered or the judgment appealed from.
Hence, in the cases of the State ex rel Railroad Company vs. Judge, 34 Ann. 864 and 1117, it was twice held by this Court, that in a case where our jurisdiction attached under the pleadings, it could not be affected by a subsequent proceeding, in the shape of a remittitur after judgment, by the effect of which the claim of the plaintiff was irrevocably reduced to a sum less in amount than the lower limit of our jurisdiction.
Carrying' out the principle therein announced, it would seem to follow that, in this case, over which the jurisdiction of this Court was avowedly vested under the pleadings, it could not be divested by a subsequent act of the judge, and much less by his judgment.
*431The reliance on the opinion in the case of Duran’s Succession, 34 Ann, 585, cannot avail; that case was practically overruled by the two mandamus cases above referred to.
Hence it is doubtless that appellee’s astute counsel did not even intimate our want of jurisdiction in this matter, but actually joined in the appeal and prayed for an amendment of the judgment.
But this appeal should be maintained even if the Duran decision is still authority. The theory of that case was that the judgment which dismissed appellant’s opposition, homologated at the same time the account of administration so far as not opposed, thus reducing the fund remaining in the hands of the administrator to an amount less than the lower limit of our jurisdiction.
In the instant case, the judgment on the oppositions was rendered, (although not signed) before the judgment of homologation of the account so far as not opposed. It, therefore, appears that when opponents were thrown out of court, the fund to be distributed had not yet been reduced, under the process illustrated in the Duran case; and, that it was yet in the sum of $6629, an amount more than sufficient to give us jurisdiction.
I, therefore, sincerely believe that there is error in the judgment of dismissal.
Mr. Justice Fenner concurs in this opinion.