62 So. 338 | Ala. Ct. App. | 1913
— Most of the questions presented by this record were settled by the decision of our Supreme Court on former appeal (Stewart v. Sample, 168 Ala. 270, 53 South. 182), which, were we so inclined, it is beyond our province to review or our right to disturb. To the report of that appeal reference is made as to the points there determined and for a fuller understanding of those here considered, which are new to it.
With reference to the question of usury and interest, it is there said: . “The fifth claim set up by the substituted defendant [S. E. Stewart, as administrator of C. G. Harris] is that when C. G. Harris, the deceased tax assessor, gave to appellee [plaintiff, R. H. Sample] the order in question [on Drinkard, the original defendant] for $575, the consideration for said order was $500, loaned by appellee to said Harris [deceased], and that the $75 was usurious interest, and it is alleged that said appellee is not entitled to said $75. It is true that in this proceeding the merits of the claim against Drink-ard [the original defendant] cannot be inquired into, for he has confessed that he owes the money, but the question to be decided is to whom the money paid into court by [him] belongs. The money belonged primarily to Harris [the said intestate of the substituted defendant, Stewart], and so much of it as is legally subject to the order belongs to the appellee, while any part of said money that is not subject to said order belongs to the estate of Harris. If a part of it is not subject to that order by reason of the order’s being usurious, to that extent the amount belongs to the estate of Harris and should be deducted from the amount apparently due on the order.”
On that appeal it was further held that the following sums, which came into the hands of Drinkard, the original defendant, as tax collector, collected by him as fees and commissions belonging to' Harris, the deceásed
On the present trial the lower court charged the jury in writing at the request of plaintiff as follows: “I charge you, gentlemen of the jury, that, if you believe the evidence, you will find for the plaintiff for the sum of $425.78, together Avith $34.06, the interest paid into court by Drinkard on the $425.78.” There was accordingly verdict and judgment for plaintiff for $459.84, being the total of the two sums mentioned in the charge.
The substituted defendant, Stewart, as administrator of Harris, requested the following charge in writing, which was refused by the court, to wit: “I charge you, gentlemen of the the jury, that, if you believe the evidence, plaintiff cannot recover in this case a larger sum than $425.78.”
Thus the question here presented is whether or not the plaintiff, Sample, was entitled to recover the $34.06, the interest paid into court by Drinkard on the $425.78.
The record shows without conflict that the original defendant, Drinkard, upon his discharge on filing affidavit, suggesting the substituted defendant, Stewart, as a claimant to the fund sued for, paid into court a total of $621, consisting of the following items due by him, to' wit: $575, the balance of the total tax assessor’s fees
Another particular in which the lower court is alleged to have erred was in rendering judgment in favor of plaintiff against the substituted defendant for the court costs. The contention is based on section 3665 of the Code, which provides that, “if it be made to appear that usurious interest has been intentionally taken or reserved, defendant recovers toll costs.” This section makes an exception to the general rule as to the recovery of. costs established by section 3662 of the Code, which awards full costs to the successful party in all civil actions, and was designed to penalize a plaintiff who seeks in the action to enforce a demand that is
■ Upon the trial, after each side had announced ready and before any evidence had been introduced by either party, the plaintiff, Sample, moved that judgment be rendered for plaintiff upon the ground that the substituted defendant offered no evidence, which was met by a counter motion on the part of substituted defendant that judgment, he rendered for substituted defendant, because plaintiff had offered no evidence. Both motions being submitted together to the court, he overruled each. Thereupon plaintiff proceeded, and, after offering in evidence the pleadings in the case and the order on Drinkard given plaintiff by Harris and its acceptance by Drinkard, rested, whereupon substituted defendant moved again that judgment be rendered for him upon the ground that plaintiff had not made out his case, which motion was likewise overruled. Thereupon substituted defendant proceeded and introduced certain evidence, and afterwards plaintiff also introduced evidence, undisputed in any material particular by sub-stitued defendant, and which fully entitled plaintiff to recover. Hence any error of the court, if any, in his rulings on the motions mentioned, was cured and resulted in no injury to the substituted defendant. All other questions raised by this record, whether assigned as error by the appellant or cross-appellant, were setled on the former appeal.
We find no error in the rulings of the court, assigned as such here, and the judgment is affirmed.
Affirmed.