12 Neb. 504 | Neb. | 1882
This is an action to foreclose a mortgage upon real •estate, brought in the district court of Saunders county, in September, 1879. The defendants, John P. and ■Cecelia D, Aughe, filed an answer to the petition setting up the plea of usury and the payment of $100.00 as interest. The defendant, Parmele, filed an answer disclaiming any interest in the land. On the 16th of Sept., 1880, the attorneys for the plaintiff directed the clerk to
The question to be determined is, is money, retained or paid as usury, an independent cause of action that may be severed from the usurious contract, and a recovery had thereon ?
Section 5, of the act regulating interest (Comp. St. 323), provides that: “ If a greater rate of interest than is hereinbefore allowed shall be contracted for or received, ■orreserved, the contract shall not therefore be void; but if in any action on such contract, proof be made that illegal interest has been directly or indirectly contracted for, or taken, or reserved, the plaintiff shall only recover the principal, without interest, and the defendants shall recover costs; and if interest shall have been paid thereon, judgment shall be for the principal, deducting interest paid,” etc.
A party liable upon a usurious contract may avail himself of the remedy provided by the statute, if he so ■elect. To do so he must interpose the facts showing
The court did not err in overrulingthe motion to remove the cause to the U. S. Circuit court, there being no case in court to remove.
The judgment of the district court is reversed.