Carter v. Rubrecht

• Decision Date: 24 December 1940
• Docket Number: 29412.
• Citation: 108 P.2d 546,188 Okla. 325,1940 OK 500
• Parties: CARTER v. RUBRECHT et al.
• Court: Oklahoma Supreme Court

108 P.2d 546

188 Okla. 325, 1940 OK 500

CARTER v. RUBRECHT et al.

No. 29412.

Supreme Court of Oklahoma

December 24, 1940

Syllabus by the Court.

In an action brought to recover statutory usury penalties, the defendants' answer being general and specific denials and seeking no affirmative relief, when the plaintiff, before trial, dismisses his action without prejudice, the defendant is not entitled to have his attorney's fee fixed and taxed as costs against the plaintiff under section 9524 O.S.1931, 15 Okl.St.Ann. § 268.

Appeal from Court of Common Pleas, Tulsa County; Bert E. Johnson Judge.

Action by W. A. Rubrecht and others against I. Carter, doing business as Citizens Finance Company, for usury penalty. Before trial plaintiff dismissed the action and defendant applied for allowance of attorney's fee to be taxed as cost against plaintiff. From a denial of the application defendant appeals.

Affirmed.

Hughey Baker, of Tulsa, for plaintiff in error.

Hill & Haugh, of Tulsa, for defendants in error.

WELCH Vice Chief Justice.

The question here presented is whether under the existing facts the defendant was entitled to be allowed an attorney's fee under section 9524, O.S.1931, 15 Okl.St.Ann. § 268.

That section provides in effect that in an action brought to recover the penalties imposed by statute for usury, the prevailing party in such action shall be entitled to be allowed an attorney's fee to be taxed as costs against the losing party.

Essential facts are that plaintiff commenced an action to recover such usury penalty; the defendant answered by general and specific denials; thereafter, and before trial, defendant having sought no affirmative relief, the plaintiff dismissed the action without prejudice. Thereafter defendant presented application for allowance of an attorney's fee and to have same taxed as costs against plaintiff. The application was denied in the trial court.

The exact question has not heretofore been presented to this court, and we are not advised that any court of last resort has passed upon the question. Its determination here depends upon the ascertaining of the legislative intent, and the construction to be placed on the statute, in the light of our former decisions applying the statute under other circumstances.

In similar actions, where plaintiff recovered judgment for usury penalty it was clear that the plaintiff as the prevailing party was entitled to an attorney's fee to be taxed as costs against the defendant as the losing party upon the merits, and we so applied the statute. Thorne v. Milliken, 57 Okl. 735, 157 P. 914; Bank of Buffalo v. Venn, 68 Okl. 43, 171 P. 450; Security State Bank v. Lane, 64 Okl. 11, 166 P. 160; National Credit Company v. Franklin, 177 Okl. 417, 60 P.2d 744.

In actions where plaintiff sued on promissory notes and defendant by answer sought to recover the usury penalty, and issue was joined thereon, and upon trial the defendant prevailed on the merits as to the usury claim, we held the defendant as such prevailing party was entitled to be allowed an attorney's fee to be taxed as costs against the plaintiff as the losing party on the merits. Richardson v. Barnhart, 160 Okl. 246, 16 P.2d 98; McNeal v. Truesdell, 167 Okl. 602, 32 P.2d 68; Kelly v. Brown, 55 Okl. 628, 155 P. 590.

In those actions it will be noted that this court treated the attorney's fee allowance as being itself in the nature of a penalty against the losing party. It was expressly so referred to in several of those decisions, and there is no contrary reference in any other of the cited decisions. Treating the provisions for allowance of attorney's fee as a penalty statute it of course is to be strictly construed.

In Security State Bank v. Lane, supra, the trial court allowed plaintiff an attorney's fee for attorney's services in the trial court and purported to fix and allow an additional sum as an attorney's fee for services in case of appeal by plaintiff to the Supreme Court. Applying the strict construction rule to the statute, this court there held that the latter or additional fee allowance for attorney's services on appeal was not expressly authorized by the statute and could not stand, and the judgment to that extent was reversed.

In National Credit Company v. Franklin, supra, this court affirmed the judgment for plaintiff for usury penalty, and also the allowance in the trial court of a reasonable attorney's fee. Thus the defendant was the losing party in both the trial court and this court, while the plaintiff was the prevailing party in both courts. Defendant then requested an additional allowance of attorney's fee for...