Bank of Buffalo v. Venn
| Decision Date | 05 March 1918 |
| Docket Number | 8389. |
| Citation | 171 P. 450,68 Okla. 43,1918 OK 130 |
| Parties | BANK OF BUFFALO v. VENN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where an action was brought to recover twice the amount of usurious interest paid on a loan and for an attorney's fee as provided by section 1006, Rev. Laws 1910, the attorney's fee is not to be taken into consideration in determining the amount in controversy, as such attorney's fee is recoverable, and must be taxed as part of the costs of the case.
Where a judgment is manifestly right upon the record, the cause will not be reversed because the county attorney appeared as counsel for plaintiff, especially where no objection was made in the trial court to his appearance.
A justice of the peace court does not lose jurisdiction of an action for failure to try the case on the return day at the hour fixed in the summons.
Parties to an action have no vested right in any particular juror and all that either can insist upon is that the jurors actually selected to try the case shall be competent disinterested, and selected according to law.
Error from County Court, Harper County; A. H. Walker, Judge.
Action by L. E. Venn against the Bank of Buffalo. From a judgment for plaintiff in the county court on appeal from justice's court, defendant brings error. Affirmed.
E. J Dick, W. C. Lewis, and M. W. McKenzie, all of Buffalo, for plaintiff in error.
W. E. Morris, of May, and W. H. Springfield, of Woodward, for defendant in error.
This was an action by L. E. Venn against the Bank of Buffalo to recover $151.20, alleged to be twice the amount of usurious interest paid to the bank by plaintiff on a loan to him, and for a reasonable attorney's fee and for costs. Judgment was rendered in plaintiff's favor in the justice court for the sum of $151.20, penalty on account of the usurious interest exacted and for an attorney's fee in the sum of $100 and for costs. The case was appealed to the county court and tried, and again resulted in a judgment in plaintiff's favor, from which the bank prosecutes error.
The amount sued for was within the jurisdiction of the justice of the peace. The jurisdiction of the justice court as fixed by section 18, art. 7, of the Constitution includes all civil cases where the amount involved does not exceed $200 exclusive of interest and costs. Construing this provision it has been held, in an action on a promissory note containing a provision for the payment of an additional amount as an attorney's fee, that the attorney's fee so provided for must be included in determining the amount in controversy. Miller et al. v. Mills et al., 32 Okl. 388, 122 P. 671; St. Paul F. & M. Ins. Co. v. Peck, 37 Okl. 85, 130 P. 805. The statute upon which this action is based provides that in all cases the prevailing party shall be entitled to recover, as part of the costs, a reasonable attorney's fee in a sum not less than $10 to be fixed by the court. Section 1006, Rev. L. 1910. The attorney's fee in this case, not being provided for in the contract, and being expressly designated as part of the costs and recoverable as such,...
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