104 S.W. 610 | Ct. App. Ind. Terr. | 1907
August 4, 1903, plaintiff in error filed its complaint at law, complaining of T-homas J. Welch, Mary Welch, Thomas J. Welch, Jr., and Hattie Welch, defendants, wherein it is alleged that February 28, 1903, defendants made to plaintiff their promissory note for $684.25, due August 1, 1903, with interest at 8 per cent, per annum; and to secure same defendants executed to plaintiff a chattel mortgage on a number of head of cattle. It is averred that the debt is due; that demand had been made, and payment refused; and judgment is asked for said debt, $50 damages, and for costs. August 5, 1903, there was filed in the office of the clerk of [said District Court, at Tahlequah, a paper named ‘affidavit for replevin,” entitled “Wagoner National Bank
November 9, 1903, all the defendants answered the complaint, wherein it is alleged that March 4, 1902, said defendant T. J. Welch, Sr., received $350 from plaintiff, for which
Plaintiff in error brings the’ record here, upon which he lias assigned nine errors: The first and second being the denial of the motion to vacate the judgment and grant a new trial for want of evidence to sustain it, and because of fraud of defendants in error, and by the words and actions of their attorneys; third, the finding of the value of the property attached to be $245; fourth and fifth, in holding that the note sued on was tainted with usury and void, except as to $350, and that plaintiff in error forfeited all the balance of the note; sixth, in holding that plaintiff was only entitled to $350 in value of the mortgaged property, and that the value of the property taken under the writ of error was $505, and giving defendants judgment for $155; seventh, in the overruling of the demurrer to answer; eighth, holding that the note was void as to the part over and above the actual amount of the money loaned; and ninth, that the judgment for $400 is unjust.
A determination of the alleged errors 1 and 2 will obviate the necessity of a consideration of the greater part of the others assigned. The record shows that this cause came on for trial
Complaint is made that the court erred in finding that all of the note above $350 was tainted with usury. This finding of fact, as we have observed, is conclusive. The court further found that the plaintiff wrongfully replevied from defendants, or otherwise took under the mortgage, property in value in excess of the amount of money actually loaned, $155, which left the plaintiff the debtor of defendants to that amount; and, not being satisfied, the plaintiff seized other property of defendants, under a writ of attachment, to the value of ’the $245, increasing its liability to defendants to the amount of $400, for which judgment was rendered, with interest at 6 per cent, per annum from November 9, 1904. Was the court, under the law, justified in denying interest to plaintiff on the actual loan of $350? Section 5198, Rev. St. [U. S. Comp. St. 1901, p. 3493], provides, in case of usurious interest taken by national banks, as follows: “The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section [the rate in the state or territory where the bank is located], when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid therein.” There can be no difficulty, under this law, in reaching a conclusion as to what shall be done with the interest — “a forfeiture of the entire interest” — which means that it shall not be allowed. However,the court took a more liberal view of it and allowed interest at the rate of 6 per cent, per annum from the date of the original loan of $350, from March 2, 1902. The plaintiff has no cause to assign error
A careful reading and consideration of the entire record and briefs of counsel fails to show any error of the trial court of which this plaintiff can justly complain.
Judgment affirmed.