Harmon v. Foster

McDOWELL, Presiding Judge.

This was an action for damages for the wrongful death of plaintiffs’ minor child in the sum of $15,000. The cause was tried on change of venue in Butler County where plaintiff recovered a verdict and judgment for $2500. New trial was awarded plaintiffs on the ground of insufficiency and inadequacy of the verdict and because it was against the weight of the evidence. From the granting of this new trial, defendant appealed to this court where the cause is now pending.

January 25, 1957, defendant (appellant) filed a motion to transfer the cause to the Supreme Court on the ground that the Springfield Court of Appeals was without jurisdiction.

It is the duty of this court, before deciding the case on its merits, to determine whether or not we have jurisdiction. For this purpose we must determine the amount involved in the lawsuit which actually remains in dispute on appeal. Palmer v. Lasswell, Mo.App., 279 S.W.2d 535.

The law is well settled that where damage is sought in an amount in excess of $7,500, and, in the trial of the case, a judgment is recovered for a less amount, and, upon motion of plaintiff, the trial court sets aside the judgment because of inadequacy of damages, and the defendant appeals, the amount involved is the full 'amount sued for in the petition. Ford v. K. Jones Motor Co., Mo.App., 115 S.W.2d 3; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; Stein v. Baskowitz, Mo.App., 157 S.W.2d 807; Craton v. Huntzinger, Mo.Sup., 187 S.W. 48.

In the instant case the amount of damages sought in the petition was $15,-000. Plaintiffs recovered in the trial a judgment for $2,500. The trial court set aside the judgment and awarded plaintiffs a new trial on the question of damages for the reason that the verdict and judgment was inadequate and against the weight of the evidence. Defendant appealed.

The amount in dispute, exclusive of costs, exceeds the sum of $7,500. Article 5, Sec. 3, Constitution of Missouri, 1945, V.A.M.S.; Section 477.040 RSMo 1949, V.A.M.S.

This court being without appellate jurisdiction, the cause is transferred to the Supreme Court of Missouri.

STONE and RUARK, JJ., concur.