Farmers' Nat. Bank of Wewoka v. Mccoy

• Decision Date: 23 June 1914
• Docket Number: Case Number: 3547
• Citation: 141 P. 791,1914 OK 288,42 Okla. 420
• Parties: FARMERS' NAT. BANK OF WEWOKA v. MCCOY.
• Court: Oklahoma Supreme Court

1914 OK 288

141 P. 791

42 Okla. 420

FARMERS' NAT. BANK OF WEWOKA v. MCCOY.

Case Number: 3547

Supreme Court of Oklahoma

Decided: June 23, 1914

Syllabus

¶0 1. COURTS--Jurisdiction- -State and Federal Courts. Under sections 5197 and 5198, Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3493, a national bank may charge and receive on a loan the same rate of interest allowed to be charged by the laws of the state in which such national bank is located, and, when such national bank shall knowingly charge and receive a greater rate than that prescribed by the laws of the state in which such bank is located, the person by whom it has been paid, or his legal representative, may recover back, in an action in the nature of an action of debt, twice the amount of interest thus paid, provided such action is commenced within two years from the date of the usurious transaction.

2. SAME. Actions against a national bank for knowingly charging and receiving an usurious rate of interest may be maintained in any state, county, or municipal court having jurisdiction in similar cases in the county or city in which such bank is located.

3. BANKS AND BANKING--National Banks--Interest--Usury. In an action to recover twice the amount of interest paid in an usurious transaction, where the petition states facts showing the date of the note, by whom it was executed, and to whom it was made payable, and shows the amount of interest charged, and that such interest was paid and when paid, by whom it was paid, and to whom it was paid, and shows the amount of interest thus paid to have been in excess of the rate allowed by law to be charged and received, and attaches copy of the note to the petition and makes it a part thereof, and further alleges that the defendant bank "did corruptly, knowingly, wrongfully, and illegally charge, take, and receive from plaintiff the amount of interest so usuriously charged," it states facts sufficient to constitute a cause of action.

4. TRIAL--Refusal of Instructions Covered. Though instructions requested by a party may correctly state the law, yet a judgment will not be reversed for refusal to give such instructions, if the law applicable to the issues involved is correctly given in the court's charge.

Error from County Court, Seminole County; T. S. Cobb, Judge.

Action by T. B. McCoy against the Farmers' National Bank of Wewoka. Judgment for plaintiff, and defendant brings error. Affirmed.

Willmott & Dean, for plaintiff in error

J. A. Baker and W. T. Banks, for defendant in error

HARRISON, C.

¶1 This is an action by T. B. McCoy against the Farmers' National Bank, for usury alleged to have been collected from McCoy by said bank on six separate promissory notes. The alleged aggregate of interest paid on said notes was $ 101.50, and judgment was asked for double the amount of interest paid, $ 203.00, and for an attorney's fee of $ 50. The cause was tried and verdict returned in favor of McCoy for the sum of $ 203. The court, however, held that a recovery for $ 203 was not sustained by the evidence, but held that plaintiff under the evidence was entitled to recover the sum of $ 159. Whereupon McCoy filed a remittitur for the sum of $ 42, and the court rendered judgment in favor of McCoy for $ 159. From such judgment the bank appeals upon six separate assignments of error. We will notice these in their order.

¶2 The first contention is that the court erred in not sustaining motion of plaintiff in error to strike certain allegations from the petition. Plaintiff in error cites section 5627, Comp. Laws 1909 (Rev. Laws 1910, sec. --), which requires a petition to contain a statement of the facts constituting the cause of action in ordinary, concise language and without repetition. Plaintiff in error contends that this rule is violated in that the facts in the petition are not stated in ordinary and concise language, and that it abounds in surplusage, conclusions of law and of fact, and repetition. From a careful examination of the petition, we think the facts are stated in reasonably clear and concise language. We find nothing extraordinary in the language used nor do we by any means find such an abundance of surplusage, conclusions of fact, and repetition as would justify a reversal of the judgment.

¶3 The second assignment is that the court erred in overruling the demurrer of plaintiff in error to the jurisdiction of the court. The action was instituted under sections 5197 and 5198 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3493); the same being:

"Sec. 5197. Any association may take, receive, reserve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidences of debt, interest at the rate allowed by the laws of the state, territory, or district where the bank is located, and no more, except that where by the laws of any state a different rate is limited for banks of issue organized under state laws, the rates so limited shall be allowed for associations organized or existing in any such state under this title. When no rate is fixed by the laws of the state, or territory, or district, the bank may take, receive, reserve, or charge a rate not exceeding seven per centum, and such interest may be taken in advance reckoning the days for which the note, bill, or other evidence of debt has to run. And the purchase, discount, or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount, or sale, at not more than the current rate of exchange as sight-drafts in addition to interest, shall not be considered as taking or receiving a greater rate of interest."

"Sec. 5198. The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid the person by whom it has been paid, or his legal representatives, may recover back, in any action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided such action is commenced within two years from the time the usurious transaction occurred. That suits, actions and proceedings against any association under this title may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established, or in any state, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases."

¶4 It is argued by plaintiff in error that, the recovery provided for in the foregoing sections being in the nature of a penalty, the federal courts should have exclusive jurisdiction over the subject-matter, citing decisions from several states which adhere to this doctrine. But this court in several different cases instituted under the federal National Bank Act has impliedly held that the state courts had jurisdiction. Merchants' & Planters' Nat. Bk. of Mill Creek v. Horton, 27 Okla. 689, 117 P....