Caddo Nat. Bank v. Moore

• Decision Date: 14 November 1911
• Citation: 120 P. 1003,30 Okla. 148,1911 OK 364
• Parties: CADDO NAT. BANK v. MOORE.
• Court: Oklahoma Supreme Court

120 P. 1003

30 Okla. 148, 1911 OK 364

CADDO NAT. BANK v. MOORE.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

The petition alleged that: "Defendant knowingly charged bankrupt the sum of $600 interest on the above-mentioned indebtedness; that said sum was greatly in excess of the legal rate of interest allowed by law; that defendant knew at the time of making said loan and charging said amount of interest, that it was charging more than the legal rate of interest." The sufficiency of the petition was not challenged by motion or demurrer. The answer alleged "Defendant denies that it collected from bankrupt interest in excess of the legal rate allowed by law as alleged in plaintiff's petition." No objection to the introduction of testimony was made. The proof was amply sufficient to sustain the charge of usury, and every requirement of the law relative to proving usury was complied with. Held that, after the verdict, in the absence of motion of demurrer, and in view of the answer filed, and no objection to the introduction of the testimony having been made, it will be too late to raise objection to the sufficiency of the petition for the first time in this court.

Where the undisputed facts show that a bank knowingly charged usurious interest, and the only possible conclusion to be derived from the evidence, taken as a whole, is that the transaction is usurious, the question is one of law for the court, and not of fact for the jury.

Where there was any evidence reasonably tending to support the verdict of the jury, the court will not disturb the same.

A trial court is clothed with large discretion and supervisory power in the conduct of the trial, and unless it affirmatively appears that there was an abuse of such discretion, and supervisory power, in permitting leading questions to be asked an unwilling or unfriendly witness, or to a witness affected with a poor memory, the same will not be reviewed by this court on appeal.

Commissioners' Opinion, Division No. 1. Error from District Court, Bryan County, D. A. Richardson, Judge.

Action by J. A. Moore, trustee in bankruptcy of Will Moon, against the Caddo National Bank. Judgment for plaintiff, and defendant brings error. Affirmed.

Hatchett & Ferguson and J. L. Rappolee, for plaintiff in error.

Semple & Moore, for defendant in error.

ROBERTSON C.

Trial action was commenced in the district court of Bryan county on the 14th day of August, 1908, by the defendant in error, who will hereinafter be called the trustee, against the Caddo National Bank, hereinafter called the bank, to recover the sum of $2,600, on account of alleged preferential payments made by Will Moon while insolvent, and the further sum of $1,200 on the second cause of action, for alleged usurious interest.

The second and third paragraphs of plaintiff's petition are as follows, to wit:

"That petition in bankruptcy was filed against Will Moon on the 27th day of February, 1908; that within four months before the filing of said petition, to wit, on October 29, 1907 said Will Moon, while insolvent, paid defendant the sum of $2,600; that defendant thereby received a preference over the other creditors of said bankrupt; that said amount was paid on an indebtedness owing at the time by said bankrupt to defendant; that defendant knew, or had reasonable cause to know, that he was thereby receiving a preference.

"Petitioner states as a further cause of action against defendant that defendant knowingly charged said bankrupt the sum of $600 interest on the above-mentioned indebtedness; that said sum was greatly in excess of the legal rate of interest allowed by law; that defendant knew at the time of making said loan and charging said amount of interest that it was charging more than the legal rate of interest; that under the laws pertaining to usury governing national banks this trustee is entitled to recover double the amount of interest charged, to wit, the sum of $1,200."

Defendant in addition to a general denial answered as follows, to wit: "Defendant further denies that within four months before the filing of the petition in bankruptcy against Will Moon that the said Will Moon, while insolvent, paid to this defendant the sum of $2,600, thereby giving this defendant a preference over other creditors of said bankrupt as set out in plaintiff's petition. Defendant denies that it collected from Will Moon, bankrupt, interest in excess of the legal rate allowed by law, as alleged in plaintiff's petition."

On the issues thus joined trial was had to a jury, and a verdict was rendered in favor of plaintiff on the first cause of action in the sum of $809.45, and by direction of the court on the second cause of action for usury in the sum of $99.20.

Many errors were complained of by counsel for the bank in the petition in error. Only five of which, however, are treated in its brief. The first error complained of is that the petition of the trustee fails to set out facts sufficient to constitute a cause of action for usurious interest. The sufficiency of the petition was not challenged in the trial court, by motion, demurrer, or otherwise. The bank, in its answer, "denies that it collected from Will Moon, bankrupt herein, interest in excess of the legal rate allowed by law." The testimony offered by the trustee, which was not objected to by the bank on account of defective petition, in our opinion cured the defective pleading, and in effect supplied any allegation which had been omitted. Doubtless the trial court would have required the trustee to amend his petition had its attention been called thereto by motion, or demurrer, or by objection to the introduction of evidence under the said second count, had any such effort been made. The bank was content, however, to meet the defective charge made in the petition by a general, as well as a special, denial, and went to trial on the issues thus formed without objection. The testimony offered by the trustee in support of the charge of usurious interest was amply sufficient to sustain the verdict. It was shown that excessive interest was knowingly charged, and that every requirement of the law relative to proving usury was complied with. In its motion for a new trial the bank refers to this question but once and then in the following language, to wit: "For the reason that the court erred in instructing the jury to find for the plaintiff in the sum of $99.20 on the usury item, because the testimony of the witness Hudspeth, while stating the dates for which some of the notes had run, also testified that his recollection was that the interest charged on those notes was not between the dates given, but that it included past due interest, and as to whether or not that was more than 10 per cent. was a question of fact upon which the jury should have passed, and to which charge the defendant at the time then and there excepted."

In its petition in error the bank raises the question of the insufficiency of the petition for the first time. It was not presented to nor urged upon the trial court in any way by the motion for a new trial. The only allegation in the petition in error with reference to usury was substantially as stated in the motion for new trial. This question should have been raised by motion for new trial and should have been presented to the trial court, but the bank, not having raised it, is deemed to have waived the same. In McDonald v. Carpenter, 11 Okl. 115, 65 P. 942, it is said: "The points now contended for in the brief were not raised upon motion for new trial, nor presented to the court for review at all, and the defendant in error was entitled upon these grounds to have the cause dismissed." See, also, White et al. v. Madison, 16 Okl. 212, 83 P. 798. "Grounds not stated in the motion or written statement will not be considered at the hearing by the trial court. And similarly it is held that on appeal or error the reviewing court will not consider any grounds other than those specified in the motion. A party making a motion for new trial is bound by the reasons assigned therein and can urge no other on appeal. All matters which are grounds for new trial, and which are not set out in the motion are waived." 29 Cyc. 944, and the many cases there cited. See, also, in support of this doctrine A. C. Leggat v. Garrick, 88 P. 788, 35 Mont. 91, 8 L. R. A. (N. S.) 1239; Crane Co. v. Ætna Indemnity Co., 43 Wash. 516, 86 P. 850; Michaels v. McRoy, 148 Mich. 577, 112 N.W. 129; Nichols Shepard Co. v. Ringler, 135 Iowa, 181, 112 N.W. 543; Hofheimer v. Campbell, 59 N.Y. 269; Knapp v. Simon, 96 N.Y. 284.

The second assignment is that the court erred in instructing the jury to return a verdict for plaintiff for $99.20 on the second cause of action. Counsel for the bank contends that the question as to whether or not it was usurious interest is in all cases a question of fact for the jury. This is not always true. In the case at bar the...