53 P. 543 | Idaho | 1898
— This action was brought to vacate and set aside a certain judgment and decree of foreclosure and all proceedings thereunder in the suit of Robert Balfour, R. B. Foreman and Alexander Guthrie, plaintiffs, against Thomas Eves and Ellen Eves, his wife, J. L. Hallett & Sons, and F. N. Hallett, defendants, which action was brought to foreclose a mortgage on real estate belonging to the defendants Thomas and Ellen Eves. The judgment and decree of foreclosure were made and entered on the twenty-eighth day of June, 1894, and the sale thereunder was made September 4, 1895. The appellant demands, in addition to the setting aside of said judgment and all proceedings thereunder, judgment against said Thomas and Ellen Eves for the sum.of $1,950 as a forfeit due the appellant under the provisions of section 1266 of the Revised Statutes, because of the usurious terms and conditions of the promissory notes sued on in said foreclosure suit. The respondents Balfour, Foreman and Guthrie appeared, and demurred to the complaint on three grounds, to wit: “1. That the said complaint does not state facts sufficient to constitute a cause of action; 2. That the court has no jurisdiction of the persons of the defendants or of the subject matter of the action; 3. That the plaintiff herein has no legal capacity to sue, in this: that there is no statute or legislative enactment of Idaho authorizing the state to institute such suit: Wherefore defendants demand judgment on demurrer. Forney, Smith & Moore, Attorneys for Demurring Defendants. Filed November 13, 1897.” The demurrer was sustained, and judgment of dismissal entered in favor of the demurring defendants. This appeal is fran the judgment.
The order sustaining the demurrer is assigned as error. The penalty for usurious contracts, and the remedy are set forth in section 1266 of the Revised Statutes, which is as follows: “If it is ascertained in any suit brought on any contract that a rate of interest has been contracted for greater than is authorized by this chapter, either directly or indirectly, in money or in property, such contract works a forfeiture of ten cents on the hundred by the year, and at that rate, upon the amount of such contract, to the school fund of the county in which the suit is