Citizens' State Bank of Ft. Gibson v. Strahan
| Decision Date | 15 May 1917 |
| Docket Number | 6073. |
| Citation | 165 P. 189,63 Okla. 288,1917 OK 225 |
| Parties | CITIZENS' STATE BANK OF FT. GIBSON v. STRAHAN ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Record examined, and held, that the trial court did not err in overruling defendant's motion to strike certain portions of plaintiffs' petition.
By virtue of our liberal statute which allows amendments as to parties at any stage of the proceedings, the question of misjoinder of parties plaintiff, being an exception which, if taken below, might have been obviated by an amendment, will be held to be waived unless raised in some manner before or at the trial.
In this jurisdiction it is provided by statute (section 2948, Rev Laws 1910) that "the rule of the common law, that statutes in derogation thereof are to be strictly construed has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice."
Although demand and refusal be a requisite to the right of the plaintiff to commence an action for the recovery of usury paid, yet, when the law does not require any particular form or condition for either, any demand will be sufficient which notifies the lender that the borrower intends to claim the benefits given him by the statute.
Record examined, and held, that the demand herein constitutes a substantial compliance with the proviso of section 1005, Rev. Laws 1910, which provides: "Provided such action shall be brought within two years after the maturity of such usurious contract; provided, further, that before any suit can be brought to recover such usurious interest, the party bringing such suit must make written demand for return of such usury."
The Supreme Court will not examine the record to ascertain whether the amount found by the court or jury is the correct amount, or, indeed, review any of the other alleged errors committed at the trial, which are not presented in the lower court for re-examination by motion for new trial or otherwise.
Error from Superior Court, Muskogee County; Farrar L. McCain Judge.
On rehearing. Judgment affirmed.
For former opinion, see 158 P. 378.
Guy F. Nelson, of Oklahoma City, for plaintiff in error.
W. D. Halfhill and O'Hare & Davidson, all of Muskogee, for defendants in error.
This was an action commenced by the defendants in error, plaintiffs below, against the plaintiff in error, defendant below, for the purpose of recovering twice the amount of certain usurious interest paid by the plaintiffs and retained by the defendant, contrary to section 1005, Rev. Laws 1910. Hereafter the parties will be called "plaintiffs" and "defendant," respectively, as they appeared in the court below. After the evidence was all in, the jury by direction of the trial court returned a verdict in favor of the plaintiffs for the sum of $773.16, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.
Whilst the petition in error herein contains many assignments of error, counsel for defendant in his brief summarizes the points upon which he relies for reversal under the following subheads:
The first assignment of error is based upon the assumption that the instruments mentioned in the motion to strike, upon which the usurious interest was alleged to have been paid, matured two years prior to the commencement of this action; therefore, they say, all right of action for double recovery of interest thereon was barred by that part of the statute which requires such action to be commenced within two years after the maturity of the usurious contract. The evidence tends to show that the various notes referred to in the motion to strike were simply renewals of several original notes; that all the notes involved herein, 13 in number, were part of the same contract, and simply evidenced the original loan of $900, which was the only money plaintiff ever received from the bank. In order to extend the time of payment of the original notes, renewal notes were made from time to time; the original consideration supporting them all. The contract to pay the borrowed sum of $900 did not finally mature until July 1, 1912, which was the date of maturity of the last renewal note. As this action was commenced in August, 1912, it is apparent that this was well within the statutory period of two years.
The contention of counsel as to the second assignment is to the effect that, inasmuch as the evidence showed the plaintiffs jointly executed the notes upon which this action is based, and that all the payments of interest made upon such alleged usurious contract were made by plaintiff Kent Strahan, and that no payments were made or paid by plaintiff Maud Strahan; therefore it was error to overrule the defendant's demurrer to the evidence. The demurrer to the evidence is in the following form:
"Comes now the defendant and demurs to the evidence offered by the plaintiffs for the reason that it does not prove facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiffs."
This did not directly present to the trial court for consideration the question of misjoinder of parties plaintiff now raised by counsel. Neither does this question appear to have been presented to the trial court for re-examination by the defendant in its motion for a new trial, the formal grounds for which are stated as follows:
It is well settled that under liberal statutes, similar to ours, authorizing amendments as to parties, a misjoinder has lost much of its former importance, and unless raised in some manner before or at the trial it will usually be held to have been waived, and consequently cannot be raised for the first time on appeal. 15 Enc. Pl. & Pr. 581; White v. Portland, 67 Conn. 277, 34 A. 1022; Nelson v. Smith, 54 Ill.App. 346; Mattoon v. Fallin, 113 Ill. 249; Cofran v. Shepard, 148 Mass. 582, 20 N.E. 281; Cruchon v. Brown, 57 Mo. 38.
The question of misjoinder of plaintiffs not having been directly raised at the trial, we think it now comes too late. It is an exception which, if taken at the trial, might have been obviated by an amendment. The ample power, now given to courts, to allow amendments without costs, renders this objection comparatively unimportant, when it does not affect the merits of the case.
The next contention of counsel is to the effect that the demand made by the plaintiffs for the return of the alleged usurious interest was not in substantial compliance with the part of the statute (section 1005, Rev. Laws 1910), which provides that:
"Before any suit can be brought to recover such usurious interest, the party bringing such suit must make written demand for" such usurious interest.
The demand was in the following form:
"Demand is hereby made upon you to return to, and pay to the undersigned, $112.35, the same being for usurious and illegal interest paid to you upon a certain loan made to us during the years of 1910 and 1911; the final payment and settlement made to you on or about the 12th day of July, A. D. 1912."
It seems that the amount stated in the demand was the sum plaintiffs conceived they had paid as usurious interest, and the contention is that, inasmuch as the demand was for a specific sum, which was not double the amount of the usury paid, it was not such a demand as the statute required as a condition precedent to the right of the plaintiffs to commence their action. In discussing the question of a proper demand in Miller et al. v. Oklahoma State Bank of Altus et al., 157 P. 767, which was an action similar to this, this court, in an opinion by Mr. Justice Brown, said:
"We also hold that under the second subdivision of said section 1005, where the borrower of money pays therefor a greater rate...
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