Opinion
No. 13095.
November 8, 1950.
Herbert S. Shapiro, Richard E. Gerstein, Miami Beach, Fla., for appellant.
Melvin J. Richard, Miami Beach, Fla., for appellees.
Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.
The suit, based on diversity and amount, was brought by appellant, plaintiff below, under Sec. 517.21, Florida Statutes Annotated, to recover the full purchase price paid by him for securities bought of defendants, together with interest as provided for therein and all taxable court costs.
In support of the allegation that the amount in controversy was in excess of $3,000.00, to-wit $3,136.25, plaintiff alleged that the purchase was of 100 shares of the capital stock of Taca Airways at a price of $23.75 per share, or a total price of $2,375.00, together with $261.25 interest thereon and $500.00 as reasonable attorney's fees.
Defendant, moving to dismiss, not on the ground of want of jurisdiction but because the complaint failed to state a claim against the defendants upon which relief could be granted, the motion was sustained, the cause was dismissed, and plaintiff appealed.
Here both appellant and appellees, the one insisting that the judgment should be reversed, the other that it should be affirmed, have argued the merits of the case as pleaded.
Of the opinion that from the complaint itself, it clearly appears that the amount in controversy, exclusive of interest and costs is less than $3,000.00 and that the court is without jurisdiction of the cause, we are compelled of our own motion to take notice that this is so and to order the judgment reversed and the cause dismissed for want of jurisdiction.
Sec. 1332, Title 28 U.S.C.A.
Judgment reversed and cause dismissed.