Traders' Securities Co. v. Hays , 245 Ky. 198 ( 1932 )

Overruling motion.

The appellant brought this suit against the appellees on three promissory notes aggregating $178.80 and interest. The appellees by their answer presented certain defenses not here material to discuss and also asserted a counterclaim in the sum of $25.70. On the trial, at the close of the appellant's evidence, the court peremptorily instructed the jury to find for the appellees on the notes sued upon. This the jury did and judgment was entered dismissing appellant's petition. No action was taken or had on the asserted counterclaim of the appellees. From the judgment entered dismissing its petition, the appellant has prayed this court for an appeal. Appellant admits that the amount of its claim is not enough to give this court jurisdiction of its motion, but contends that we should add the amount of the counterclaim asserted by the appellees to the amount of its claim which it lost, which, if done, yields a total in excess of $200 and thus confers jurisdiction on this court to entertain the motion made. The cases upon which appellant relies to sustain its position will, on examination, disclose that the additions made with original claims and counterclaims have only been made when there has been a final judgment as to such original claims and counterclaims. See cases collected under Key No. 51, Appeal and Error, West Publishing Company, Kentucky Digest. The instant case, however, does not come within such classification. It is true the plaintiff's petition was dismissed, but it thereby lost only $178.80 exclusive of interest and costs. There was, and is as yet, no judgment against it on the counterclaim and on this appeal, the amount of that counterclaim is not involved. There has been no final disposition made of it yet. This being true, the amount of the counterclaim cannot be added to the appellant's claim which it lost. The amount involved in this motion for an appeal being below $200, we have no jurisdiction of appellant's motion. Kentucky Statutes, sec. 950-1. The motion for the appeal must be overruled for want of jurisdiction.