Sheldon v. Mickel

40 Iowa 19 | Iowa | 1874

Cole, J.

I. Upon the trial, the testimony on the part of plaintiffs tended to show that the transaction mentioned in the first count was a loan, while that of defendants tended, with quite as much force, to show that it was a sale. When the evidence was nearly concluded, the plaintiffs filed a petition under Code, Secs. 3685-6, asking that defendants be required to produce to be inspected, copied and used as evidence, their day-book, journal, ledger and cash book for the years 1869, 1870 and 1871, and stating that the defendants had the custody of said books, that there were entries therein showing that defendants had treated the money mentioned in the first count as a loan, and the notes of Bailey & Co. as collateral; that they expected to prove by said books that defendants have charged plaintiffs with interest on that money as a loan, and credited them with money collected on the collaterals, the Bailey notes. This was sworn to by one of the plaintiffs. The court refused to require the defendants to produce said books, etc., and this refusal is assigned as the first error.

The statute provides that upon such an application the rule shall be granted “ if the court deems such rule expedient and proper.” It is a matter, therefore, left to the sound legal discretion 1. bvidenob : count. of the court, and to reverse an order in such case, requires the showing of an abuse of that discre-tioH to tbe injury of tbe party complaining. We liave not before us any definite statement of tbe grounds of the refusal-by tbe court. Tbe record does show, however, that the issues were fully made up in June, 1873, and the trial did not take place till the October following; that the application was not made till the testimony was nearly closed; that no excuse for the delay was shown, nor does it appear that the books were in the same town or county where the trial was had, nor that a coninuance would not be necessary if the rule was granted. Under such circumstances we would hardly be justified in saying that the court abused its discretion. The court had the benefit of all the facts surrounding the trial, but few of which are shown to us; and one of those facts shown to us, to-wit: the negligence or delay of the party applying for the rule, and the failure to offer any excuse for that delay, goes very far to justify the court in its action, and we cannot say that it erred therein.

II. It is next assigned as error that the court should have found the transaction mentioned in the first count a loan, and not a sale; but upon the evidence as we have it, our judgment accords with that of the learned judge who tried the cause.

III. The court below found the loan mentioned in the second count usurious, and rendered judgment against the plaintiffs 2 usDEYijtttig-determination of amount. for ten Percent. on the amount loaned, in favor scliool fund. In calculating the interest it was c]one Up0rL the whole amount of the loan for the whole time. The evidence shows payments by collections upon the collaterals from time to time. It is not controverted that, if the amount is calculated exactly as between borrower and lender, and the proper credits endorsed, it would be eight}' dollars only. That it should .be so calculated was held by this court in Smith, Twogood & Co. v. Coopers & Clark, 9 Iowa, 388. The cause will be remanded with directions-to modify that judgment accordingly, and, with such modification, the judgment is

Afjtbmed.