Lowe v. Frede.

• Decision Date: 05 December 1910
• Citation: 132 S.W. 274,151 Mo. App. 569
• Parties: LOWE v. FREDE.
• Court: Missouri Court of Appeals

132 S.W. 274

151 Mo. App. 569

LOWE v. FREDE.

Kansas City Court of Appeals. Missouri.

December 5, 1910.

1. APPEAL AND ERROR (§ 110)—ORDERS APPEALABLE.

Under Rev. St. 1909, § 2038, authorizing an appeal from an order granting a new trial, an appeal from an order denying a new trial does not lie.

2. COURTS (§ 231)—JURISDICTION—AMOUNT IN CONTROVERSY.

A cause of action for assault and battery for $30,000 compensatory and exemplary damages involves a sum beyond the jurisdiction of the Court of Appeals, and an appeal from an order denying a new trial after verdict for defendant must be transferred to the Supreme Court, so that the Court of Appeals cannot dismiss the appeal, though taken from an order which is not appealable.

Appeal from Circuit Court, Atchison County; Wm. C. Ellison, Judge.

Action by Lincoln A. Lowe against John W. Frede. From an order overruling a motion for new trial after verdict for defendant, plaintiff appeals. Transferred to Supreme Court.

H. B. Williams, L. J. Miles, and John W. Stokes, for appellant. L. D. Ramsay, for respondent.

ELLISON, J.

Plaintiff's action is for assault and battery, in which he prays judgment for $15,000 compensatory and $15,000 exemplary damages, making a total of $30,000 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 (section 806, Rev. St. 1899 [Ann. St. 1906, p. 769]; section 2038, Rev. St. 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 $30,000. That sum is beyond our jurisdiction, and is in that of the Supreme Court, to which we will order the cause transferred. All concur.