
    Harry BROWN and Neshe Brown, Appellants, v. Irving FINE, Appellee.
    No. 57-273.
    District Court of Appeal of Florida. Third District.
    May 15, 1958.
    
      Robert M. Riddle, Miami Beach, for appellants.
    Samuel B. Pearlman, Miami Beach, for appellee.
   PEARSON, Judge.

The appellants, who were plaintiffs in the trial court, brought an action at law to recover the amount of a “deposit” upon a real estate transaction. The appellants were sellers and they proceeded to the closing even though the purchaser had failed to make the deposit provided by the contract of sale. The appellee-defendant refused to proceed with the closing. In addition to the above stated facts, the complaint alleged actual damages in amount of $127.50. It should be noted that the ap-pellee has not favored this court with a brief as is his duty. Rule 3.7, subd. b, Florida Appellate Rules, 31 F.S.A.; Bolles v. Carson, 73 Fla. 504, 74 So. 509.

The complaint for recovery of a deposit not actually made was properly dismissed. The motion for dismissal was upon two grounds: one, failure to state a cause of action; two, jurisdiction of the amount in controversy. Upon the latter ground the action for actual damages may be transferred to the court having jurisdiction of the amount involved. Rule 1.39 (b), 1954 Rules of Civil Procedure, 30 F. S.A. The cause is remanded for such an order, if the appellant shall properly move for the order.

Affirmed in part, reversed in part.

CARROLL, CHAS., C. J„ and HORTON, J., concur.  