Lowe v. Frede

ELLISON, J.

Plaintiff's action is for assault and battery, in which he prays judgment for fifteen thousand dollars compensatory and fifteen thousand dollars exemplary damages, making a total of thirty thousand dollars which he seeks to recover. There was a trial and a verdict for the defendant. Plaintiff then, in due time, filed a motion for new trial and this was overruled. No judgment was rendered for defendant and plaintiff took his appeal from the order overruling the motion for new trial. The statute (sec. 806, R. S. 1899, sec. 2038, R. S. 1909) authorizes an appeal from an order granting a new trial, but not where a new trial is refused. Plaintiff’s appeal is therefore without legal right or authority.

We would dismiss the appeal but for the fact that we are without jurisdiction. The sum in controversy is the amount of plaintiff’s claim, which, as already stated, is thirty thousand dollars. That sum is beyond our jurisdiction and is in that of the Supreme Court, to which we will order the cause transferred.

All concur.