First Nat. Bank of Tishomingo v. Latham

• Decision Date: 06 May 1913
• Docket Number: Case Number: 1770
• Citation: 1913 OK 278,37 Okla. 286,132 P. 891
• Parties: FIRST NAT. BANK OF TISHOMINGO v. LATHAM.
• Court: Oklahoma Supreme Court

1913 OK 278

132 P. 891

37 Okla. 286

FIRST NAT. BANK OF TISHOMINGO v. LATHAM.

Case Number: 1770

Supreme Court of Oklahoma

Decided: May 6, 1913

Syllabus

¶0 1. CORPORATIONS--Service of Process--Return--Sufficiency. In an action against a national bank, the return on the summons showing the date of the receipt and that the officer executed the same "in my county" by leaving a true copy with the cashier, naming him, "president not in the county," construed in connection with the summons, and where served in the county, and where the action is pending, and of which the sheriff is an officer, and where defendant is engaged in business, is a sufficient return showing service upon the corporation as required by section 5604, Comp. Laws 1909.

2. ACTION--Joinder of Causes of Action. Same as that in paragraph 3 of syllabus in State Bank of Paden v. Lanam, 34 Okla. 485, 126 P. 220.

3. COURTS--County Courts--Jurisdiction--Statutes. Same as that in paragraph 1 of syllabus in State Bank of Paden v. Lanam, 34 Okla. 485, 126 P. 220.

4. BANKS AND BANKING--Action for Usury--Giving of Renewal Note. The giving of a renewal note will not sustain a recovery from a national bank, under Rev. St. U.S. sec. 5198 (U. S. Comp. St. 1901, p. 3493), on account of usurious interest in the original note, since the payment contemplated by that statute is an actual payment, and not a further promise to pay.

5. ACCORD AND SATISFACTION--Payment--What Constitutes--Definition. Where, in the delivery of chattels in settlement of a liquidation amount, no valuation of the property is fixed or agreed upon at the time, the act constitutes, not a payment in property, but an accord and satisfaction, though having the effect of discharging the indebtedness.

6. SAME--Pleading and Proof. In an action brought under section 5198, Rev. St. U.S. (U. S. Comp. St. 1901, p. 3493), to recover the penalty provided for the payment of usurious interest, facts constituting accord and satisfaction cannot be proven under the general allegation of payment.

7. CORPORATIONS--Actions Against--Pleading--Admission of Incorporation. In an action against a national bank, where the answer consists of a general denial and is unverified, the due incorporation of the banking corporation stands admitted.

Horton & Smith and S. C. Treadwell, for plaintiff in error.

P. H. B. Shearer, for defendant in error.

SHARP, C.

¶1 It is first urged that the court erred in overruling defendant's motion to quash the return of service of summons. The petition was filed January 18, 1909, and on the same day the court issued a summons in the regular form, directed to the sheriff of Johnston county, commanding him to notify the First National Bank of Tishomingo that it had been sued by C. D. Latham in the county court of Johnston county, Okla. The return and answer days were named in the body of the summons. Summons was issued under the seal of the court and signed by the judge thereof. There was indorsed on the summons the amount for which, with interest, judgment would be taken, if the defendant failed to appear. The return of the summons shows that it was received on the day of its issuance and was executed by the sheriff "in my county by leaving a true copy of the within summons with all the indorsements thereon to D. C. Teter, the cashier. President not in the county on the 18th day of January, 1909." Summons was duly signed by the sheriff, indorsed and filed by the clerk of the county court, January 18, 1909. That the service was had in Johnston county sufficiently appears from that part of the return showing the summons to have been served by the sheriff of Johnston county "in my county." The summons directed the sheriff to serve the First National Bank of Tishomingo. The return showed that it was served on D. C. Teter, the cashier. Section 5604, Comp. Laws 1909, authorized the service of summons upon the cashier when the president is not found in the county. Construing the summons and the return thereon as a whole, it sufficiently appears that the official served was the cashier of defendant bank, and that the absent official was the president of the defendant bank. That part of the return which states "president not in the county" should be construed to mean not in Johnston county, the county in which the action was pending, and where the defendant was engaged in business, and of which the officer serving the process was sheriff. In such cases the presumption is, until the contrary is made to appear, that the sheriff has done his duty and has served the process upon the proper party. Kansas City, Ft. S. & Memphis Ry. Co. v. Daughtry, Adm'r, 138 U.S. 298, 11 S. Ct. 306, 34 L. Ed. 963. The rule, however, should not be extended to cases where the return fails to show proper service. Rowe v. Table Mountain Water Co., 10 Cal. 441; Keener v. Eagle Lake Land, etc., Co., 110 Cal. 627, 43 P. 14; San Antonio & A. P. Ry. Co. v. Wells, 3 Tex. Civ. App. 307, 23 S.W. 31; Missouri, K. & T. Ry. Co. v. Crowe, 9 Kan. 496; McMurtry v. Tuttle, 13 Neb. 232, 13 N.W. 213; Ft. Wayne Ins. Co. v. Irwin, 23 Ind. App. 53, 54 N.E. 817. We are familiar with the rule that, where substituted service of summons is made, it is sufficient to give the court jurisdiction only where the condition upon which it is presumably made exists, and that the existence is not to be inferred but must appear by affirmative statements in the return. The question here is one of construction of the return, taken in connection with the summons itself, and to our minds contains a sufficient compliance with the requirement of the statute. The second specification of error is that the court erred in overruling the first, second, and third paragraphs of defendant's demurrer. The first ground thereof was that several causes of action were improperly joined in the same petition. The causes of action are of the same class, and all arose under the identical provision of the statute, the only difference being that of time and amount; the parties are the same and are affected in the same right; the venue is the same; the allegations affecting each of the several causes of action are similar, and the defense is the same; the same character of relief was sought and obtained. Hence the causes of action were properly united in one petition, as provided in section 5623, Comp. Laws 1909. State Bank of Paden v. Lanam, 34 Okla. 485, 126 P. 220; First National Bank of Tishomingo v. Ingle, ante, 132 P. 895. The second and third grounds of demurrer go to the jurisdiction of the court over the subject-matter. It is urged that by reason of the amount involved in the third and fourth paragraphs of plaintiff's petition, each being less than $ 200, the county court therefore had no jurisdiction. The position is untenable. Cooper v. Austin, 30 Okla. 297, 119 P. 206; First Nat. Bank of Mill Creek v. Langston, 32 Okla. 795, 124 P. 308; State Bank of Paden v. Lanam, supra. The third and fourth assignments of error may be considered together, as they involve the same general proposition; the fourth, in addition, presenting the question of pleading and evidence. These assignments of error deal with the law of payment, of medium of payment, of accord and satisfaction, of whether any payment in anything but money, or evidence of accord and satisfaction, may be shown under a general allegation of payment. Plaintiff's action is one founded upon section 5198, Rev. St. U.S. (U. S. Comp. St. 1901, p. 3493), for taking interest in excess of the lawful rate. The statute provides that, in case a greater rate of interest has been paid, the person by whom it has been paid, or his legal representative, may recover back, in an action in the nature of debt, twice the amount of the interest thus paid from the association taking or receiving the same. Plaintiff's petition in the third, fourth, fifth, and sixth paragraphs charges the payment of various sums of usurious interest to defendant. On the trial it developed that three of the notes alleged to contain usurious interest were not paid, but that on the 28th day of December, 1907, said notes were taken up and the amount of indebtedness represented thereby included in a new note for $ 539.90, due October 15, 1908. So that, so far as we are able to say, whatever usury may have attached in the course of dealings between the parties, made the subject of this action, was brought forward and included in the renewal note, the mere giving of which did not constitute the payment of interest. First National Bank v. Lasater, 196 U.S. 115, 25 S. Ct. 206, 49 L. Ed. 408; Daingerfield National Bank v. Ragland, 181 U.S. 45, 21 S. Ct. 536, 45 L. Ed. 738; Brown v. Marion National Bank, 169 U.S. 416, 18 S. Ct. 390, 42 L. Ed. 801; Farmers' & Mechanics' Nat. Bank v. Hoagland (C. C.) 7 F. 159; Pickett v. Merchants' Nat. Bank, 32 Ark. 346; Lanham v. Crete First Nat. Bank, 42 Neb. 757, 60 N.W. 1041; Kearney v. Clarion First Nat. Bank, 129 Pa. 577, 18 A. 598; Davey v. First Nat. Bank of Deadwood, 8 S.D. 214, 66 N.W. 122; Talbot v. Sioux City First Nat. Bank, 106 Iowa 361, 76 N.W. 726. The testimony as to the medium and method by which it was claimed the renewal note was discharged or paid was not disputed. Prior to the maturity of the note, and on or about the 31st day of July, 1908, the plaintiff and cashier of the defendant bank, at the instance of the former, effected a settlement of the note in question, and perhaps two other notes, known as the Murray and Sadler notes, on which plaintiff was liable. Proof, however, as to what the real settlement was as to these latter notes is very unsatisfactory, and we are unable from the record before us to accurately determine whether the settlement finally effected was to include both or either of the latter notes. Plaintiff's testimony tended to show that the agreement reached between him and the bank was that he was to turn over to the bank the property mortgaged to secure the note's payment, and that the bank was to...