8 Kan. App. 638 | Kan. Ct. App. | 1899
The opinion of the court was delivered by
This action was brought in the district court of Barber county by the defendant in error Frazee to recover usurious interest which he claimed to have paid to plaintiff in error The Citizens’'
The defendant demurred to the petition, stating, among other grounds of demurrer, that there was a defect of parties plaintiff, and that several causes of action were improperly joined in the petition. The court overruled the demurrer, and the defendant, having elected to stand upon its demurrer, brings the case here for review.
We think that the demurrer should have been sustained. • The plaintiff attempted to unite a cause of action arising out of a partnership transaction with one arising out of an individual transaction. From the averments of the petition, it appears that upon the notes given by the partnership the interest was paid in advance or incorporated into the notes. The notes were paid by the partnership and the interest was therefore paid out of partnership funds, and, this being true, the plaintiff could not bring an action to recover usurious interest paid by the partnership. All the mem
Defendant in error in his brief asks that the petition in error be dismissed, for the reason that the certificate of the clerk of the district court to the transcript is insufficient. Objection is also made to the consideration by this court of the petition in error because no motion for a new trial was made in the court below. While the certificate of the clerk is long and contains many things that are unnecessary, we think that it complies substantially with the requirements of the statute.
It was not necessary for defendant to file a motion for a new trial in order to entitle it to have the ruling of the court on the demurrer reviewed by this court. (Water-Supply Co. v. Dodge City, 55 Kan. 60, 39 Pac. 219.) The judgment of the’district court is reversed.