50 Neb. 652 | Neb. | 1897
This was an action upon a promissory note for $2,700 executed by the defendants below under the firm name of Montgomery & Jaycox, and delivered to the Albion National Bank. The defense was usury, thirteen payments of illegal and usurious interest of $16.50 each being set up in the answer in as many counts thereof. The bank filed a general demurrer to the several counts of the answer, which was overruled as to the first three defenses and sustained as to the others. From a judgment against the defendants they prosecute error.
It is argued that there was reversible error in sustaining the demurrer to the last ten grounds of defense contained in the answer. The defendants sought to have applied, by way of set-off against the note, the several payments of illegal or usurious interest actually paid the bank on the loan. The district court ruled they were not entitled to do so, which is in accord with the doctrine recognized and applied in Norfolk Nat. Bank v. Schwenk, 46 Neb., 381, and Lanham v. First Nat. Bank of Crete, 46 Neb., 663. In the opinion in the last case it was said “that usurious interest paid a national bank on a note cannot be set off in an action upon such note, and that the federal statute alone determines the penalties that shall be visited upon such banking institutions for exacting and receiving illegal interest; that is, if illegal interest has been contracted for and not paid, the bank forfeits all interest; but if illegal interest has been paid to a national bank, the borrower may recover double the amount thereof, providing his action is commenced within two years from the time the usurious transaction occurred; further, that the borrower may not set off in an action on
The note in controversy was taken in renewal of two other notes given by the defendants for $1,500 and $1,200 réspectively. The one for the larger sum was tainted with the vice of usury, while as to the other no usury is claimed. It is insisted that the merging of those two notes into the one under consideration affected the latter with the usurious taint, and prevents the recovery of interest on any portion of the principal sum; therefore, the court below erred in allowing interest on $1,200 of the debt. Whether this is true or not we refrain from deciding, since no complaint has been made in the petition in' error that the assessment of the amount of the recovery was excessive. (Beavers v. Missouri P. R. Co., 47 Neb., 761; Barmby v. Wolfe, 44 Neb., 77.)
Another contention is that there was error in overruling the motion to discharge the attachment, which was based upon two grounds — the insufficiency of the affidavit on which the attachment was issued, and that the statements therein contained are untrue. The latter ground alone is relied upon in this court. The motion to> dissolve was heard upon conflicting affidavits, and the decision being supported by evidence tending to show that at least one of the statutory grounds for an attachment existed, the ruling will not be molested.
Finally, it is argued that the court erred in rendering judgment in favor of the bank for the costs made on the attachment. All other costs were taxed to it. The note
The judgment, in so far as it awarded the bank the costs which accrued in the attachment, is reversed and a
Judgment accordingly.