126 P. 220 | Okla. | 1912
Plaintiff's action was instituted on the 15th day of September, 1909, and was tried June 16, 1910. It is urged that the county court did not have jurisdiction; the amount involved being less than $200. This exact question was before the court in Cooper v. Austin,
The rule announced in this case was followed by the court inFirst Nat. Bank of Mill Creek v. Langston,
The next objection is that two causes of action were improperly joined in the same petition. Plaintiff's action is one based on section 3, art. 14, of the state Constitution. Under the rule announced in Ex parte McNaught,
The common-law remedy for the recovery of usurious interest paid was indebitatus assumpsit, or an action for money had and received. Melton v. Snow,
"Actions for the recovery of statutory penalties are usually regarded as upon contract, and several causes of action therefor against the same defendant may be joined." (23 Cyc. 408; Carter v. Wilmington, etc., Ry. Co.,
In Katzenstein v. Raleigh, etc., R. Co.,
"The action of debt, then, thus founded upon contract, was an appropriate remedy upon all legal liabilities upon simple contracts, whether written or unwritten; upon notes, whether with or without seals, and upon statutes by a party grieved or by a common informer, whenever the demand was for a sum certain, or was capable of being readily reduced to a certainty. 1 Chitty's Pleading, 123. As, for example, a penalty imposed by a statute, though the amount is uncertain, and is to be fixed by the court between $5 and $50. Rockwell v. Ohio, 11 Ohio, 130. But why was debt an action sounding in contract the proper remedy for a penalty given by a state? The learned jurists, whose cumulative wisdom formed the common-law system of pleading, which has been characterized by some of its eulogists as the perfection of reason, must have had good grounds for classifying penalties among those subjects of action denominated ex contractu, as distinguished from torts. The only explanation we have been able in our researches to meet with on this subject is to be found in 3 Blackstone's Commentaries, 160. That learned judge and commentator says: 'There are some contracts implied by law. Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is that every person is bound and hath agreed to pay such particular sums of money as are charged on him by the sentence or assessed by the interpretation of the law. For it is a part of the original contract entered into by all mankind, who partake the benefit of society, to submit in all points to the municipal constitutions and local ordinances of that state of which each individual is a member. Whatever, therefore, the law orders one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.' " (Italics ours).
The case of Washington-Alaska Bank v. Stewart, supra, decided February 6, 1911, is the only case exactly in point that we have been able to find. The statute of the territory of Alaska, with reference to the joinder of causes of action, is identical with our statute. The petition contained six separate causes of action, in each of which it was alleged that at different dates specified the bank loaned to the plaintiff certain sums of money, and charged and collected from him interest thereon at the rate of two per cent. per month, which was in excess of the amount allowed by law, and was made illegal by the statutes of that territory. The prayer of the complaint was for the penalty imposed *489 by section 257 of the statute (Carter's Civ. Code) in double the amount of the interest so paid. After citing and discussing various authorities, the court said:
"We see no difficulty in the way of holding that the causes of action here sued upon arise under an implied contract. When the plaintiffs paid to the defendant interest in excess of the amount allowed by law, there arose an obligation tantamount to an implied promise to repay the amount so unlawfully exacted, and in addition thereto the law imposed an obligation to pay an equal amount. That obligation was enforceable under the code pleading as a promise to pay, just as at common lawassumpsit lay on an implied promise to discharge a legal obligation created by statute. Hillsborough County v.Londonderry,
Bliss on Code Pleading (2d Ed.) sec. 128, and note.
The case of Cincinnati, etc., Ry. Co. v. Cook,
The causes of action here are of the same class, and all arose under the identical provision of the statute, the only difference being that of time and amount; the parties are the same, and are affected in the same right; the venue was the same; the general allegations of the petition and the defenses were the same; the same character of relief was sought and obtained. At common law causes of action of this nature could be united in the same declaration; and, in view of the fact that the Code or Practice Act was designed to abolish or modify technicalities imposed by *490 the common-law system, and to simplify the rules of procedure, we cannot give effect to that purpose by yielding to the refinements contended for by plaintiff in error, and hold that separate suits must be brought upon the two causes of action stated. The court did not err in overruling the demurrer for the misjoinder of causes of action.
The third assignment of error, that the verdict was excessive, is not well taken. At page 36B of the case-made, under the head of "Suggested Amendments," it is shown that the defendant in error received from the bank on the two notes the sum of $350, and paid thereon $424.07, making a total payment of interest of $74.07, and the amount of plaintiff's verdict, being $148.14, is exactly twice the amount of the total interest paid — the amount of recovery authorized.
The judgment of the trial court should be affirmed.
By the Court: It is so ordered.
