delivered the opinion of the court.

This motion is granted on the ground that the record shows that the value of the matter in dispute does not exceed five thousand dollars: The suit was brought originally to recover 135 head of Colorado steers, alleged to be worth $6000. At the time of the judgment only 79 head were in dispute. As to the rest, a settlement had been made during the pendency of the suit. The court has found as a fact that the 79 head *376 were sold in open market the day after they were taken possession of under the writ in this case, and that the net proceeds of the sale only amounted to $4526.15. There is nothing to show that they were really any less valuable at the time of the sale than when they were taken. Upon the facts as found the recovery could not have exceeded five thousand dollars if there had been a judgment in favor of Cox, the plaintiff in error.

Dismissed.