
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. AUXILLIUM FOUNDATION et al., (Marvin E. Nieberg, Exception), Defendant-Respondent.
    No. 34180.
    Missouri Court of Appeals, St. Louis District.
    Feb. 23, 1972.
    Robert L. Hyder, Chief Counsel, Jefferson City, Gregory F. Hoffmann, Thomas H. Pearson, Asst. Counsels, Kirkwood, for plaintiff-appellant.
    Carter & Newmark, J. B. Carter, Philip R. Newmark, Clayton, for defendant-respondent.
   DOERNER, Commissioner.

This was an action by the Highway Commission to secure easements and property rights necessary for the right-of-way for State Highway Route A-340 in St. Louis County. The landowner here involved, Marvin E. Nieberg, excepted from the commissioner’s award, and the Highway Commission appealed from the ensuing verdict and judgment of $40,000 rendered in favor of the landowner.

The Highway Commission’s notice of appeal to the St. Louis • Court of Appeals, .dated March 8, 1971, was filed in this court on March 18, 1971. However, in its brief the Highway Commission asserted that the jurisdiction of the appeal was vested in the Supreme Court inasmuch as the case involved the interpretation of Article V, Section 5 of the Constitution of Missouri of 1945, V.A.M.S. After it had filed its brief the Highway Commission filed a motion to transfer the appeal to the Supreme Court, to which motion the landowner filed written objections, and we overruled the motion.

After submission of the cause a subsequent examination of the record disclosed another reason, not raised by either party, as to why we lack jurisdiction of the appeal. As stated, the judgment in favor of the landowner was for $40,000. The evidence of the Highway Commission indicates that the landowner was entitled to damages of at least $9,000. Thus the record affirmatively shows that the amount remaining in. dispute, exclusive of costs, is $31,000. State ex rel. State Highway Commission v. Langley, Mo., 422 S.W.2d 309; State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740; State ex rel. Burcham Drainage District No. 48 v. Drainage District No. 25, Mo., 271 S.W.2d 525. That amount, of course, was in excess of the jurisdictional limit of this court at the time the appeal was taken. Section 477.040, RSMo 1969, V.A.M.S.

Accordingly, the case is ordered transferred to the Supreme Court of Missouri.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted at the opinion of this court.

Accordingly, cause transferred to Supreme Court of Missouri.

BRADY, C. J., and DOWD, SMITH, SIMEONE and WEIER, JJ., concur.  