Finney v. Moore

• Decision Date: 16 December 1903
• Citation: 74 P. 866,9 Idaho 284
• Parties: FINNEY v. MOORE
• Court: Idaho Supreme Court

74 P. 866

9 Idaho 284

FINNEY v. MOORE

Supreme Court of Idaho

December 16, 1903

USURY-JUDGMENT-INTEREST-ATTACHMENT.

1. A judgment entered on a usurious contract, under the provisions of section 1266, Revised Statutes, legally draws interest at the rate of seven per cent per annum from the date of the rendition of such judgment.

2. The fact that the plaintiff fails to recover judgment for the full amount stated by him to be due in his affidavit for an attachment is not such a false statement in the affidavit as to authorize the discharge of the attachment under the rule laid down in Murphy v. Montandon, 3 Idaho 325, 35 Am.St.Rep 279, 29 P. 851, or at all.

3. The undertaking in attachment in this case (a copy of which is set forth in the opinion), held, sufficient under an act entitled "An act to provide a form of undertakings in civil and criminal actions," approved February 14, 1895 Session Laws of 1895, page 18.

(Syllabus by the court.)

APPEAL from District Court of Idaho County. Honorable Edgar C Steele, Judge.

Action on promissory note. Judgment for plaintiff. Affirmed.

Affirmed, with costs.

Fogg & Nugent, for Appellant.

While the statute has not mapped out a definite mode of procedure in judgments of forfeiture upon usurious contracts, courts must necessarily base such judgments upon the pleadings or the evidence in the case, and such judgment and the judgment in favor of the plaintiff and against the defendant should not be inconsistent with each other. In this case no point is made as to the insufficiency of the judgment of forfeiture. The judgment of forfeiture by the court specifically finds that the note sued on in this instance was a usurious contract, and decree is entered in accordance with said findings. The verdict of the jury finds for the plaintiff in the sum of $ 697.19, and says nothing about interest. The judgment entered in favor of plaintiff and against defendant thereon is as follows: "It is ordered and adjudged that said plaintiff have and recover of and from the defendant the sum of $ 697.19, with interest thereon at the rate of seven per cent per annum from this date until paid." When it is ascertained that the suit is upon a usurious contract the two judgments determine the issue in the case. Section 1266, Revised Statutes, provides: "The plaintiff must have judgment for the principal sum, less all payments of principal or interest theretofore made and without interest or cost." Section 1264, Revised Statutes, as amended by Laws of 1899, page 316, provides: "Parties may agree in writing for the payment of any rate of interest on money due or to become due on any contract not to exceed the sum of twelve per cent per annum; any judgment rendered on such contract shall bear interest at the rate of seven per cent per annum until satisfied." The note in controversy is not such contract and plaintiff is not entitled to interest under this section. These statutes expressly provide that the right to have interest upon judgments, on contracts which by the terms thereof provide for interest, only applies to those contracts which are not usurious in the first instance. It is not the policy of the law that a party may contract for an illegal rate of interest, and that upon a refusal of the debtor to pay the same he may reduce his claim to judgment and thus through the powers of a court purge his agreement of the usury and collect a legal rate of interest. "What the statute requires to be stated in the affidavit must be stated, and truly stated in the affidavit, and if not stated in the affidavit, the attachment should be dissolved, even though the requisite facts omitted in the affidavit are alleged in the complaint." (Fisk v. French, 114 Cal. 403, 46 P. 161.) A false statement that a claim is unsecured will furnish a ground for vacating the attachment. (Murphy v. Montandon, 3 Idaho 325, 35 Am. St. Rep. 279, 29 P. 851; Fisk v. French, 114 Cal. 400, 46 P. 161; Vollmer v. Spencer, 5 Idaho 557, 51 P. 609; Willman v. Friedman, 3 Idaho 734, 35 P. 37.)

Clay McNamee and George W. Goode, for Respondents.

Was the writ of attachment issued improperly or irregularly? (Mason v. Lieuallen, 4 Idaho 415, 39 P. 1117; 3 Am. & Eng. Ency. of Pl. & Pr., p. 15 et seq.)

SULLIVAN, C. J. Stockslager, J., concurs. Ailshie, J., took no part in the decision.

OPINION

SULLIVAN, C. J.

This is an action on a promissory note alleged to have been executed by the appellant on the twentieth day of November, 1902, due on January 15, 1903, for $ 697.19, "with interest at the rate of eighteen cents per annum."

The answer puts in issue the allegations of the complaint and avers that said note is usurious, in that it provides for a greater rate of interest than twelve per cent per annum.

The cause was tried by the court with a jury. The issue as to whether said note was usurious was taken from the jury and decided by the court. The court held that the note was usurious and the jury returned a verdict in favor of the plaintiff for the face of said note, to wit, $ 697.19.

At the time said suit was brought a writ of attachment was issued and levied upon the property of the defendant. The defendant moved to discharge and dissolve the attachment on the ground that it was improperly and irregularly issued, which motion was overruled by the court.

Judgment was entered in favor of the plaintiff for the face value of said note, to wit, $ 697.19, with interest at the rate of seven per cent per annum from the date of said judgment and against the plaintiff for the penalty provided by section 1266, Revised Statutes, on usurious contracts.

This appeal is from the judgment entered against the appellant and from the order refusing to discharge the attachment.

The first contention of counsel for appellant is that the court erred in allowing seven per cent interest on the judgment, and cites section 1264, Revised Statutes, as amended by act of 1899, which provides, among other things, that parties may agree in writing for the payment of any rate of interest on money due or to become due on any contract not to exceed twelve per cent per annum, and that any judgment rendered on such contract shall bear interest at the rate of seven per cent per annum until satisfied. It is contended that the promissory note in controversy is not such a contract, and for that reason plaintiff is not entitled to interest on his judgment. The provisions of said section 1264 being quasi penal and providing for a forfeiture will not be construed to include matters not expressly enumerated therein.

When a judgment is rendered as provided by section 1266, the transaction between the parties is shorn of its illegal features and the full penalty prescribed has been meted out. The express contract in writing for the payment of eighteen per cent per annum has been held illegal and void, and the amount found to be...