Commonwealth, Department of Highways v. Miller , 387 S.W.2d 297 ( 1965 )

WILLIAMS, Judge.

In this highway condemnation action the property owners were allowed $1385 in county court as compensation for the taking of their property. They appealed to the dircuit court where a jury awarded them $3500. The Commonwealth now attempts an appeal to this Court.

Appeals to the Court of Appeals may not be' taken as a matter of right in civil cases where the amount in controversy is less than $2500. KRS 21.060. Where the amount is as much as $200 but less than $2500 a party may appeal only by filing a motion for an appeal in the Court of Appeals. KRS 21.080.

The Commonwealth failed to appeal from the county court judgment, which had the effect of limiting the circuit’ court’s jurisdiction to a determination of the inadequacy of the award as questioned on appeal by the landowners. Texas Gas Transmission Corporation v. Rose, Ky., 365 S.W.2d 332 (1963). To the extent,of the amount awarded in county court the question of excessiveness in the circuit court was closed. Commonwealth, Department of Highways v. Barker, Ky., 379 S.W.2d 481. The only thing in controversy is the amount the circuit court judgment exceeded the county court award.

The difference between the circuit court award and the county court award is $2115. That is less than $2500; consequently the Commonwealth was not entitled to appeal as a matter of right.

.The circuit court in its order overruling the Commonwealth’s motion for a new trial stated that the amount in controversy exceeded $2500. It is only when the judgment does not, when construed in connection with the pleadings, certainly fix the amount in controversy, that the court shall fix it. KRS 21.070. Here the circuit court judgment was for $3500 and the county court award appealed from was $1385. The difference between the two is apparent on the face of the instruments and is fixed at $2115. As a consequence, the valuation was not subject to interpretation by the circuit court

The appeal is dismissed.