122 Ky. 324 | Ky. Ct. App. | 1906
Opinion of the Court by
— Affirming.
Appellee instituted this suit against appellant, Gteorge W. Bramblett, upon two promissory notes of $14,959.90 each, subject to certain credits, and to enforce a mortgage lien created to secure them. The only defense was that of usury. It is claimed, and is
The point in dispute is as to the correct method of calculating the interest and applying the credits. Appellant’s contention is that the debts should be taken at the date of their origin as of the amounts actually received then by appellant, and that interest should be counted upon them from that time at the rate of 6 per cent per annum until the entering of the judgment; that partial payments should be applied, whenever made, first, to the discharge of
We are of opinion, the method adopted by the court is the correct one. It was so held in Farmers’ Bank of Kentucky v. Calk, 4 Ky. Law Rep., 617;
It is insisted for appellant that the commissioner and the court erred in the matter of calculating the interest in this further particular: That whereas, even under the rule announced by the court, the amount originally loaned as of the time of the original loan was taken as the basis of the calculation, yet in certain enumerated instances appellant had paid interest in advance a.t 8 per cent, for a definite term; that therefore the adoption of the plan indicated' ignored that fact, and required the payment^of the interest twice. While the plan suggested was the; one directed by the court, in actually applying it, it appears that in the instances where the interest was paid in advance, or, which is the same thing, where the discount was reserved by the bank, and only the net proceeds of the note were paid over to the borrower-, the commissioner credited the face of the note with the amount of usury embraced in it, together with interest at 6 per cent per annum upon such usury, and then took the remainder as the true principal, upon which interest was thereafter calculated at 6 per cent, per annum from the maturity, instead of the date of the note. The effect of this was in no sense different from the rule announced by the court. Intern _t was not twice calculated for the same period. It resulted in interest being calculated once only, but allowed it to be paid in advance, as the parties had agreed by their contract it should be. This was held in Warren Deposit Bank v. Robinson’s Admrs., 35 S. W., 275; 18 Ky. Law Rep., 78, to be legal, and not an infraction of the usury laws of the State; for it is competent for
A question of practice is presented which in our opinion does not affect at all the substantial rights of appellant. It is that after the issue above indicated was formed the court of its own motion required appellee bank to further amend its petition by setting out in detail and chronologically the original and renewal of each of the constituent debts of the notes sued upon with all payments made thereon whether of interest or otherwise. The order of the court required this amendment to be filed within a given time, which extended beyond the term of the court. As a matter of fact it was filed within the time, but during the vacation. Appellant contends that there is no authority under the Code to file an amended petition during vacation. Even if this should be conceded, we are of opinion that tills proceeding was not hurtful to' appellant. As a matter of fact it was not necessary, as the issue was already completed and the proof had already been taken.
Perceiving no error prejudicial to the substantial rights of appellant, the judgment is affirmed.