Snyder v. Crutcher

137 Mo. App. 121 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts). — We have set out the pleadings and various steps in the ease perhaps with unnecessary detail. But we have done that to call attention to what we cannot but regard as the unnecessary and costly evils resulting from an ill-advised reference of a .very simple case, originating before, and clearly within the jurisdiction of a justice of the peace and taken by appeal from his court to the circuit court. Here is a case of an action to recover money alleged to have been paid in violation of the laws of the State against usury and for the recovery of an attorney’s fee awarded by the Statute of 1905 as an additional penalty for the exaction of usury. It is an action which under the old forms of pleading would be called an action on the case. The facts to be proved in it, as shown by the petition on which it was before the circuit court, are: From whom did plaintiff borrow the money; was a note for $38.50 given for $35 actually borrowed; was the excess in that note usurious; was that note merged in the note for $82.50; was the latter note, to the order of L. A. Crutcher, a mere substitute for the former one in favor of L. F. Crutcher; had the real owner of it, L. A. Crutcher, loaned any money to the plaintiff; how much had he loaned; what amount had plaintiff paid on the several notes; was this amount in excess of the legal rate of interest? These were the substantive facts in the case to be tried. They presented no feature whatever of “a long account” within the meaning of the statute, although there may have been payments at several dates. These payments were the ordinary payments on account of interest and the amount of them and the excess of them was a, matter that any ordinary jury could have readily determined. The case, originally tried before a justice of the peace, does not seem, from anything in the record, to have been beyond his comprehension or his ability to solve in a simple and expeditious manner. Yet a case of this kind seems to have been converted into a proceeding in equity, and the very learned and accomplished referee has filed an elaborate report embodying his findings and conclusions of law, in the preparation of which he has evidently devoted much time and great learning. As a matter of course, the demand, contained in the statement filed before the justice and repeated in the circuit court, for a cancellation and delivery of the notes, was something beyond the power of tlie justice of the peace and beyond the power of the circuit court in an action coming to it on appeal from the justice’s court. The cancellation of instruments and an order for their surrender is a matter peculiarly within the jurisdiction of courts of equity. So we entirely eliminate that phase of the case from all consideration. This left nothing before the justice of the peace or the circuit court but the ascertainment of certain disputed facts. With those crucial facts established, there was nothing left but the application of payments, which were never disputed, and the calculation of interest. This did not involve the taking of a long account, within the purview of the statute. [Ice Co. v. Tamm, 138 Mo. 385; Kenneth Investment Co. v. Bank, 96 Mo. App. 125 l. c. 134.] On the substantive facts in the case defendants were entitled to a jury. They did not waive it but insisted on their right to it all through the proceeding. Furthermore, with this matter of the cancellation and return of the notes eliminated, there is no cause whatever stated against the defendant L. A. Crutcher. An examination of the petition, confirmed by the testimony in the case, and a reading of the report of the referee, shows that L. F. Crutcher was the man who loaned the money, who received all the interest, with whom all the transactions were had, and who is now the real owner of the notes, and, in an action at law, as this was, L. A. Crutcher was neither a proper or necessary party. It was not alleged in any of the statements filed and there is not a particle of proof to show, that he received a dollar of the money claimed to have been unlawfully exacted or that he was-the one who made the loans. But with this case and on these facts, a large bill of costs has been run up and much time of counsel and of officers of the court consumed. Repeating that this is a case properly within the jurisdiction of a justice of the peace, whose courts are established for the speedy determination of controversies — ■ people’s courts, as they are sometimes called — courts wherein no formal pleadings are required, cases coming into the circuit court from them should be very few and should be very exceptional to justify a reference. This case is not one of them and is not within the exception.

Many objections and exceptions were taken and saved to the admission and exclusion of testimony by the referee. It is also strenuously insisted by respondent that the exceptions to the report of the referee, having been filed more than four days after filing of report by the referee, and in fact after the time allowed by the court for filing exceptions had expired, should be disregarded. The plaintiff who now urges this point neither saved exceptions by term bill to this, nor has he appealed.

Hence this point cannot be now considered. [Tinsley v. Kemery, 170 Mo. 310 l. c. 316.] Nor, in the view we take of the case, is it necessary or profitable to consider any of the other questions presented.

As much as we dislike to reverse cases on what appear to be technical rulings or on matters of mere practice, we are forced to do so in this case, for here technicality tends to substantial justice and to the preservation of a right held to he inalienable, a right of trial by jury.

The judgment of the honorable circuit court of Greene county is reversed and the cause remanded.

Nortoni, J., concurs; Goode, J., not sitting and not participating in the decision.