Opinion
No. 27972.
April 17, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Wm. J. Becker, Clayton, for appellants.
Frank Coffman, Edward H. Schwarzenbach, St. Louis, Frank W. Jenny, Union, for respondents.
This is an action for a deficiency judgment, on a note after foreclosure of the deed of trust securing the note, brought by plaintiffs, Joseph R. Davis and Katherine V. Davis, the payees of said note, against the defendants, Lina Hauschild and Arthur Hauschild, makers of said note. The prayer of the petition was for judgment in the sum of four thousand eight hundred sixty-two dollars and eighty cents ($4,862.80), with interest thereon at the rate of five percent. per annum from March 6, 1943, together with costs. To said petition, defendants filed their answer and counterclaim.
In defendants' counterclaim it was alleged that the execution of the note sued upon by plaintiffs was part of a transaction whereby defendants purchased of plaintiffs a tract of land in Franklin County, Missouri, which was improved by a gasoline filling station. It was alleged that for said property defendants executed said note, which was for $10,000 and secured by a deed of trust on said filling station property, and conveyed to plaintiffs a tract of land in Morgan County consisting of one hundred five acres on which were certain improvements. Also as a part of the consideration for said purchase, defendants transferred to plaintiffs a note secured by a deed of trust on a certain building, or flat, in the City of St. Louis. It was then averred that defendants were induced to enter into said trade by reason of false and fraudulent representations made by plaintiffs concerning the amount of business done at said filling station and at the restaurant which was operated in connection therewith. It was then alleged that the plaintiffs had secured possession of the filling station property under a foreclosure sale, and were still in possession of the Morgan County property, which had a value of $15,000, and of the deed of trust which was worth $5,000; that, as a result of the fraudulent acts of the plaintiffs, said plaintiffs were indebted to defendants in the sum of $20,000 — the total value of the Morgan County property and said deed of trust. The prayer of said counterclaim was for judgment against plaintiffs in the sum of $20,000, together with interest from September 10, 1942, and for their costs.
The trial below resulted in a directed verdict in favor of the plaintiffs and against the defendants on plaintiffs' cause of action in the total sum of $6,425, and in favor of plaintiffs and against defendants on defendants' counterclaim. Judgment was entered accordingly, and from this judgment defendants have appealed.
Appellants in their brief complain not only of the action of the trial court in directing a verdict against them on plaintiffs' cause of action, but also complain of the action of the court in holding, as a matter of law, that no recovery could be had on their counterclaim.
The amount in dispute herein is not limited to the judgment in plaintiffs' favor on their cause of action, but also embraces the amount sued for in the counterclaim, which is the sum of $20,000. Clearly, this court is without jurisdiction of this appeal. Const. of Mo., Art. V, sec. 3; Schmidt v. Morival Farms, Inc., Mo.App., 232 S.W.2d 215. Being without jurisdiction of the appeal in this case, it is our duty, under Section 11 of Article V of the Constitution of Missouri, to transfer the cause to the Supreme Court. The case is, therefore, ordered transferred to the Supreme Court of Missouri.
McCULLEN and BENNICK, JJ., concur.