Bahnsen v. Gilbert

• Decision Date: 29 November 1893
• Docket Number: No. 8179.,8179.
• Citation: 55 Minn. 334
• Parties: ANNA BAHNSEN <I>vs.</I> JOHN GILBERT.
• Court: Minnesota Supreme Court

Page 334

55 Minn. 334

ANNA BAHNSEN vs. JOHN GILBERT.

No. 8179.

Supreme Court of Minnesota.

Argued October 31, 1893.

Reversed November 29, 1893.

Appeal by defendant, John Gilbert, from a judgment of the District Court of Polk County, Ira B. Mills, J., entered January 13, 1893.

On January 29, 1889, defendant made his promissory note for $500 and interest at ten per cent. a year payable on December 1, 1889, to the order of plaintiff, Anna Bahnsen. He delivered it to her deceased husband for her and afterwards paid $232.85 thereon. She brought this action October 23, 1891, on the note to recover the balance. The defendant answered that on the date of the note he owed plaintiff's husband, Doctor W. J. Bahnsen, $235 for medical services and borrowed of him that day $230 in money and gave to him the note in suit, bearing interest at 10 per cent. a year. That $35 thereof was a bonus for making the loan and for giving further time for payment of the debt and that the note was for that reason usurious and void. Plaintiff replied denying the usury. The issues were tried March 19, 1892. A jury was waived. Findings were not made and filed until December 28, 1892. They were as follows;

"I find as matters of fact that all the allegations of fact in the complaint are true. As conclusions of law, that plaintiff is entitled to judgment against defendant for $321.40 with interest at ten per cent. a year from March 1, 1890, with costs and disbursements. Let judgment be entered accordingly."

No application was made for further findings. The Judge's term of office expired on January 1, 1893. Notice was given, the costs taxed and judgment entered January 13, 1893, for $430.85. Defendant gave bond and served notice of appeal to this Court on January 28, 1893. He made a case and on February 25, 1893, served a copy and gave notice that he would on March 6, 1893, present it for settlement before Hon. Frank Ives, successor of Hon. Ira B. Mills. On that day plaintiff appeared and objected that the time for serving and settling a case had gone by, that judgment had been entered, an appeal taken, and that Judge Mills who heard the trial had gone out of office. Judge Ives overruled the objections and made an order that the transcribed shorthand notes of the stenographer, taken at the trial, be allowed and filed as the case in the action; and he made a certificate that the case so made contained all the evidence given and exceptions taken on the trial. The Clerk of the District Court returned to this Court a certified copy of the judgment roll with the case attached, together with all the notices, orders and files in the action. The plaintiff made no motion in this Court to correct or strike out any part of this return. The appeal was set for argument here, without objection, and upon the day appointed was argued upon the merits.

A. C. Wilkinson, for appellant.

A. A. Miller, for respondent.

VANDERBURGH, J.

The action is upon a promissory note executed to plaintiff by defendant, upon which a balance is claimed to be due.

The defendant alleges that the consideration of the note moved from the husband of the plaintiff, and that the face of the note, which bears interest at ten per cent., covers the sum of $35, not actually received by him but which was included in the amount thereof as a bonus or usurious charge for the use and forbearance of the sum loaned in addition to the ten per cent. rate of interest called for by the note.

The case was tried without a jury, and the court found generally "as matters of fact that all of the allegations of fact in plaintiff's complaint are true." This included the issue of the ownership of the note by plaintiff. The fact of its execution to her and of its possession was...