Opinion
No. 43152.
January 9, 1953.
APPEAL FROM THE CIRCUIT COURT, AUDRAIN COUNTY, GLOVERE DOWELL, J.
Henry Balken Bush, Linn, James Buffington, Mexico, Popham, Thompson, Popham, Mandell Trusty, Kansas City, for appellants.
Allen Woolsey, Springfield, Smith Williams, Springfield, for respondents.
The St. Louis Court of Appeals (to which this appeal was originally taken), being in doubt as to whether the amount in dispute exceeded its monetary jurisdiction, transferred the case to this court, one judge dissenting. See Mo.App., 246 S.W.2d 382, 384. On oral argument here it was ordered from the bench, and without assigning the case for opinion, that it be retransferred because not within the monetary jurisdiction of the Supreme Court. This memorandum is for the dual purpose of clarifying that order by showing the reasons upon which it was based, and to cause the reports to more fully reflect the history of the case.
The controlling facts in connection with the jurisdictional question are these: The petition, in two counts, sought to recover damages alleged to have been sustained by plaintiffs, respectively (Nickels, under Count I, $15,000 for personal injuries; Sur-Way Lines, Inc., under Count II, $7,111.90 for property damage), as the result of negligence on the part of all the defendants, Borgmeyer, Dill and Grellner. Borgmeyer filed his separate answer and counterclaim (against both plaintiffs), as did Grellner, the former praying $3,000 and the latter $1,000, each for property damage. Dill filed only an answer. Plaintiffs prevailed throughout, Nickels having recovered a verdict against all (three) defendants for $2,500 under Count I, and SurWay Lines, Inc., for $2,650, under Count II, likewise against all defendants; and, in addition, the jury found in favor of plaintiffs and against defendants on each of the counterclaims. Judgments accordingly, and defendants appealed.
The majority opinion of the Court of Appeals, while conceding that only one side could eventually recover in the action, nevertheless took the view that "the conclusion is inescapable that defendants by this appeal seek to obliterate plaintiffs' judgments totaling $5150 and obtain another opportunity to recover $4,000 on the counterclaims." Under such computation the amount in dispute was regarded as being the sum of $9,150. One judge dissented upon the authority of Hoefel v. Hammel, Mo.App., 228 S.W.2d 402. It is unnecessary to a proper disposition of the case to resolve these conflicting views because it appears that there is no amount remaining in dispute on this appeal insofar as the counterclaims are concerned. We say this because none of the after-trial motions filed by the defendants-counterclaimants complained of the judgments against them on such counterclaims. After verdict, each defendant filed a separate motion for judgment in his favor "upon each count of plaintiffs' petition" in accordance with his motion for a directed verdict "under Counts I and II" of the petition filed at the close of plaintiffs' evidence, and renewed at the close of all of the evidence. The prayers of the separate motions for new trial were identical, i. e., "to set aside the verdicts and judgments rendered against him under Counts I and II and to grant him a new trial." (It may be said in passing that on the merits no assignment of error has been made touching the judgments on the counterclaims.) It is apparent, therefore, that in computing the amount remaining in dispute the sums originally prayed by the counterclaims (and, on this appeal, abandoned) should be entirely disregarded. This view alone necessitated retransfer of the appeal to the St. Louis Court of Appeals, as previously ordered.
All concur.