Barger v. Taylor

• Decision Date: 18 January 1897
• Citation: 30 Or. 228,47 P. 618
• Parties: BARGER v. TAYLOR et al. [1]
• Court: Oregon Supreme Court

47 P. 618

30 Or. 228

BARGER v. TAYLOR et al. ^[1]

Supreme Court of Oregon

January 18, 1897

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action by John Barger against O.D. Taylor and others. From the judgment against him, plaintiff appeals. Reversed.

For opinion on motion to dismiss, see 42 P. 615.

E.B. Dufur, for appellant.

A.S Bennett, for respondents.

WOLVERTON, J.

Plaintiff seeks the foreclosure of two certain mortgages by separate causes of suit. The defendant interposed a plea of payments not credited as a partial defense to the first cause, and usury as to the second. The court below sustained the defendant's contention, and its decree is for plaintiff upon the first for a small balance due, and in favor of the state and against the defendants upon the second. Plaintiff appeals from the whole decree, but without making the state a party, or serving it with notice; and defendants challenge the regularity of such appeal by a motion to dismiss. The main case presents largely questions of fact. The motion to dismiss was considered, and an opinion rendered touching it some time ago, and as to that phase of the case the present consideration is upon a rehearing, but not so as it respects the merits. On the former hearing it was held that the state was not an adverse party in the sense that requires it to be served with a notice of appeal from a judgment in its favor made and entered upon a usurious contract. We are now constrained to adhere to that opinion after a careful re-examination of the reasoning upon which it is based. It would seem that the state is not required to intervene in the first instance, and thereby become a party to the suit or action as a condition to the rendition of judgment in its favor. Section 3589 of Hill's Annotated Laws of Oregon provides that: "If it shall be ascertained in any suit brought on any contract that a rate of interest has been contracted for greater than is authorized *** the court in which such suit is prosecuted shall render judgment for the amount of the original sum loaned or the debt contracted, without interest, against the defendant and in favor of the state of Oregon, for the use of the common school fund of said county, and against the plaintiff for the costs of suit, whether such suit be contested or not." The judgment is the sequence of a litigation entirely between other parties, and is dependent upon the nature of the contract sued upon. The defendant may plead the usury, and pray a forfeiture, and the state bides the result of the contest, or the court may, without contest if usury appears, forfeit the sum loaned or the debt contracted. So that, in so far as the state is concerned, its interests are fully conserved without its becoming a party to the litigation, and is in no sense a necessary indispensable, or adverse party. Now, if prior to the rendition of judgment in its favor it is not a party in that sense, it is difficult to see how the judgment alone makes it such a party for the purposes of subsequent contest in the same litigation. This is a court of review, and its functions are to revise the proceedings of the lower courts, and it is sufficient that we be placed in like position as regards parties as they were, in order that we may correct, if need be, their judgments and decrees. So that it would seem, if the state is not a necessary nor adversary party below, neither is it here for the purposes of the appeal, which is but a continuation of the litigation instituted and tried out in that court. Its interests will be as well conserved here without its formal presence as there. It was stated, arguendo, that so soon as the judgment is entered the state would have the right to have an execution issue, and that, unless it is notified of an appeal, it could never know when the case had gone to a higher court, and hence might use the execution as though the judgment in the lower court were final. This result could hardly follow. As the state is dependent for its judgment upon the result of a litigation between other parties, it is believed it would be dependent for its execution upon whether the judgment has been suspended by an appeal taken by one or more of such parties, and that it could only have an execution under like conditions as one of the parties to the action; that is to say, it must abide the course of the litigation, and take notice of its condition at all times, as it is entirely dependent for its rights upon the final judgment. But, however this may be, the question here is whether this court can obtain jurisdiction of the cause without the state being served with the notice, and this depends upon the question whether it is a party to the action, or becomes such by the entry of a judgment in its favor. For reasons already stated in this and the former opinion, we think it is not a party in the sense that requires it to be served with a notice of appeal, and hence this court may acquire jurisdiction to hear the cause without such service.

We come now to the merits, and the remaining questions are mainly of fact. As it pertains to the first cause of suit, the issue is direct whether defendant should have some additional credits not accorded him by plaintiff. We think his claim to these credits is not supported by the testimony and they should not be allowed. The amount due plaintiff upon the note for $1,277, set out in his first cause of suit, is $400, with interest at 10 per cent. per annum from October 12, 1893. The question arising upon the second cause is whether the note of $1,000 sued on is tainted with usury. The testimony directly bearing upon the transaction is meager. The note is made payable to "Geo. W. Rowland, Agent," and the mortgage executed to secure its payment is to "Geo. W. Rowland, Agt. of." The money loaned belonged to one C.W. Deitzel, who drew his check on French & Co., bankers, for the full amount of $1,000, in favor of Rowland. This check is indorsed by Rowland, showing that he received the money. Deitzel testifies that the note was delivered to him soon after its execution, and should have been indorsed by Rowland, but by an oversight was omitted until he had traded it to Barger, the plaintiff herein, when it was indorsed as follows: "Pay to John Barger, without recourse. Geo. W. Rowland." This tends to show that Rowland was the agent of Deitzel in making the loan. The latter evidently knew the loan was about to be consummated, as he consulted the defendant about the security. As touching the...