Citizens' Nat. Bank v. Donnell

• Decision Date: 30 March 1906
• Citation: 94 S.W. 516,195 Mo. 564
• Parties: CITIZENS' NAT. BANK OF KANSAS CITY v. DONNELL.
• Court: Missouri Supreme Court

94 S.W. 516

195 Mo. 564

CITIZENS' NAT. BANK OF KANSAS CITY v. DONNELL.

Supreme Court of Missouri.

March 30, 1906.

1. APPEAL—MANDATE TO LOWER COURT—EFFECT.

Where, on appeal in an action on a note in which the defendant alleged usury, the opinion stated that the "judgment should be reversed with direction to the trial court to enter up judgment for plaintiff upon the following bases," followed by the amounts for which judgment should be given, the lower court properly entered judgment for the amounts named without interest from the commencement of the suit.

2. USURY—RIGHT TO RECOVER LEGAL INTEREST.

Where, in an action the plaintiff claims the full amount of usurious interest contracted for, he forfeits the entire interest and does not draw legal interest from the commencement of the suit, notwithstanding Rev. St. 1899, § 3705, providing that creditors shall be allowed to receive interest at the rate of 6 per cent. when no rate is agreed on for all moneys after they become due on written contracts, and on accounts after they become due and demand of payment is made.

In Banc. Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by the Citizens' National Bank of Kansas City against M. C. S. Donnell. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Warner, Dean, McLeod, Holden & Timmons, for appellant. Edward P. Garnett, for respondent.

BRACE, C. J.

This is the second appeal in this case. On the former appeal the judgment of the circuit court was reversed and the cause remanded to that court "for further proceedings to be had therein in conformity with the opinion of this court herein delivered." The opinion therein delivered is reported in 172 Mo. 384, 72 S. W. 925, and concludes as follows: "Our conclusion is that the judgment should be reversed with direction to the trial court to enter up judgment for plaintiff upon the following bases:

                December 29, 1893..................  $15,000 00
                Principal of overdraft on July 12
                  1895 .............................     474 24
                Net credit on bank account on that
                  day ..............................     230 50
                Credit on note of October 1, 1895...   2,500 00
                Principal of overdraft April 29
                  1896 .............................     874 81
                Credit on account that date.........       2 42
                                                      _________
                     Total amount loaned ........... $19,081 97
                Credit by proceeds of col. Jan. 25
                  1898 .............................   5,500 00"
                

From the judgment of this court entered upon this opinion the plaintiff sued out a writ of error, by which the case was carried to the Supreme Court of the United States, where the judgment of this court was affirmed. 195 U. S. 369, 25 Sup. Ct. 49, 49 L. Ed. 238. Pending the appeal in the United States Supreme Court, the original mandate was withdrawn, and, after the decision of that court, the case was again remanded to the circuit court with the same directions as before; and, in due course, coming on for final judgment in the circuit court, under the mandate and opinion of this court, the plaintiff asked the court to declare the law to be that plaintiff is entitled to interest at the rate of 6 per cent. per annum from the commencement of this suit on such sum as the court under the mandate and opinion of the Supreme Court may determine to be due and owing to plaintiff in this action, which the court refused to do, and entered judgment for the plaintiff for the sum of $13,581.97. To which action of the court, in refusing to allow it interest from the commencement of the suit, the plaintiff duly excepted, and appeals.

The case in hand and the judgment of this court therein could not be more clearly or tersely stated than it was by Mr. Justice Holmes, who delivered the opinion of the Supreme Court of the United States, as follows: "This is a writ of error to the Supreme Court of Missouri on the ground that the plaintiff in error is denied the rights with regard to charging interest conferred upon it by the national banking act. Rev. St. §§ 5197, 5198, [U. S. Comp. St. 1901, p. 3493]. The suit was brought by the plaintiff in error upon a promissory note for $20,000, with interest at 8 per cent. made on April 29, 1892. The facts, shortly stated, are as follows: On October 29, 1892, the plaintiff bought the defendant's note for $15,000, with interest at 7 per cent. On July 12, 1895, the defendant being behind hand with his payment of interest and also having overdrawn a bank account which he kept in the plaintiff's bank, he gave the plaintiff a new note for $17,500, and interest at 7 per cent. in satisfaction of both liabilities. The amount of this note included three semiannual interest charges, of $525 each, with a few days' further interest on the former note, with interest on this interest from the time it was due, and charges of 1 per cent. or more a month on the amount overdrawn each month. It left the defendant with a credit on his bank account of $230.50. On April 29, 1896, the note in suit and another note for $2,000 were given in satisfaction of the last note for $17,500, and of another note for $2,500, of October 1, 1895, with interest accrued on both, and of an overdraft of $919.90, and a balance of $2.42. The overdraft item included, as before, charges of about 1 per cent. a month on the amounts actually overdrawn. The Supreme Court of Missouri held that the plaintiff must forfeit all interest from the beginning of the above transactions, and could recover only the original $15,000 the actual overdraft of July 12, 1895, $474.24, the bank credit of $230 given the same day, the note of October 1, 1895, for $2,500, the overdraft of April 25, 1896, for $874.81 and the bank credit of $2.42—in all, $19,081.97, less $5,500 collected on account since the action was begun. 172 Mo. 384, 72 S. W. 925."

1. The cause was remanded to the circuit court with direction to enter a particular judgment, and the circuit court "had no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed." Stump v. Hornback, 109 Mo. 272, 18 S. W. 37; Rees v. McDaniel, 131 Mo. 681, 33 S. W. 178; State ex rel. v. Edwards, 144 Mo. 467, 46 S. W. 160; Tourville v. Wabash, 148 Mo. 614, 50 S. W. 300, 71 Am. St Rep. 650; Riley v. Sherwood, 155 Mo. 37, 55...