Flint v. Kimbrough.
Decision Date | 09 June 1941 |
Docket Number | No. 4611.,4611. |
Citation | 45 N.M. 342,115 P.2d 84 |
Parties | FLINTv.KIMBROUGH. |
Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.
Suit by Eva P. Flint against Nova Cole Kimbrough, to recover treble the amount of interest the plaintiff had paid the defendant on a promissory note. From a judgment of dismissal, the plaintiff appeals.
Judgment reversed and the cause remanded with directions.
Where default decree was obtained in suit to foreclose mortgage securing usurious note, the usurious contract was not “merged” into the foreclosure decree, and payment of amount named in decree by mortgagor constituted “performance of the contract” within statute permitting borrowers who have performed usurious contract to recover treble the amount of interest paid. Comp.St. 1929, § 89-110, Laws 1933, c. 142.
Whatley, Garland & Weir, of Las Cruces, for appellant.
Mechem & Mechem, of Las Cruces, for appellee.
Appellant sued appellee to recover treble the amount of interest she paid to appellee on a promissory note, alleging that the interest she was required to pay was usurious under the provisions of § 89-110, N.M.S.A. 1929 Comp., as amended by Chap. 142, Laws of 1933, which are as follows:
“If a greater rate of interest than is hereinbefore, in Section 1 (89-109) allowed, shall be contracted for or received or reserved, the contract shall not therefor be void; but in any action on the contract proof may be made that a greater rate of interest has been directly or indirectly contracted for or taken or reserved, and the plaintiff shall recover only the principal less the amount of interest accruing thereon at the rate contracted for, and the defendant shall recover costs; and if interest shall have been paid, judgment shall be for the principal less twice the amount of interest paid and less the amount of all accrued and unpaid interest; and if the contract shall have been performed by the borrower, the person, persons or corporation who shall have received the interest shall forfeit to the borrower from whom the interest was collected, or to his heirs, executor, administrator or assigns, treble the amount of interest so collected in any cause of action brought for the recovery of the same within three years after such cause of action accrued.”
The italicized portions represent the 1933 amendment.
Appellee filed her answer in bar, setting up as a defense the judgment in foreclosure she had recovered against appellant on a real estate mortgage which appellant had executed simultaneously with the promissory note to secure the payment of said note. Appellant moved for judgment on the pleadings, which was denied. Appellant then replied and later appellee filed her motion for judgment on the pleadings, which the court sustained and followed with a judgment dismissing appellant's action. No testimony was offered by either party other than exhibits attached to the pleadings.
It appears that appellant borrowed from appellee the sum of $350, and that appellee required appellant to execute and deliver to her the promissory note in question for the sum of $367.50, the said $17.50 representing interest on principal for one year. The said note bore interest on said $367.50 at the rate of ten per cent (10%) per annum.
No claim is made by appellee that this is not a usurious contract.
The decree pro confesso and final decree in the foreclosure action recites that the defendant (mortgagor) was served with summons in the State of California. Under our statutes, this was equivalent to service of process by publication. The final decree recites that the note secured by the mortgage was past due and unpaid, and that there was due and owing to the plaintiff on the same from the defendant the sum of $367.50, with interest at the rate of ten per cent (10%) per annum, and the sum of $41 as attorney's fees; that all of said sums, together with costs paid out by the plaintiff, constituted a lien upon the property described, and that unless, within sixty days from the date of the decree, said lien is paid off and discharged, that the said lands and real estate described in the mortgage should be sold and the lien discharged out of the proceeds of the sale of such mortgaged property. There was no personal money judgment against the defendant (appellant), as of course there could not be under the state of the record.
Subsequent to the entry of the foreclosure decree, and prior to sale of the property pursuant thereto, appellant paid appellee the sum of $416.37, which was sufficient to discharge the note (contract) including the usurious interest. Consequently, no sale of the property was had.
Appellee (defendant in the instant case) urges that the decree in the foreclosure case, being between the same parties, is res judicata of the question of usury in the instant case; that the failure of the appellant to raise the question of usury at that trial forecloses her from raising it again. Appellee relies upon a statement of the doctrine of res judicata in Floersheim v. Board of Com'rs of Harding County et al., 28 N.M. 330, 212 P. 451, 453, as follows:
That case involved the prosecution of a second action by a taxpayer to assert a public right and to secure injunctive relief against the county commissioners, which had been denied to another taxpayer who sought the same relief and asserted the same right.
We do not doubt the correctness of the doctrine there announced as applicable to the facts in that case. We do doubt, however, its application to the case at bar.
[1][2] In re McMillan's Estate, 38 N.M. 347, 33 P.2d 369, 371, we approved the statement of the rules as follows:
““‘In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. ***
“” ’
It seems to us that the present action is upon a different claim or demand than that upon which the foreclosure suit rested, and that a determination of the question here presented is more nearly controlled by the principles announced in the last paragraph of the foregoing quotation from the Re McMillan's Estate case.
[3][4] In a discussion of the rule of conclusiveness of judgments, as to subsequent suits on the same cause of action, in 15 R.C.L., Judgments, commencing at § 438, we find a statement of Limitations of Rule, at § 447, and at § 449 instances of defenses not lost, though not resorted to are enumerated, and it is there said:
“While a judgment is decisive of the points raised by the pleadings, or which might properly be predicated upon them, it does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiffs might have joined, but which in fact are not joined or embraced in the pleadings.”
In the R.C.L. text last cited, it was also said:
A similar view is set forth in 24 R.C.L., Set-off and Counterclaim, § 91.
...
To continue reading
Request your trial-
Cartwright v. Public Service Co. of N.M., 6172
...Brake Shoe & Foundry Co. v. Pittsburgh Rys. Co., 3 Cir., 270 F. 812; In re McMillan's Estate, 38 N.M. 347, 33 P.2d 369; Flint v. Kimbrough, 45 N.M. 342, 115 P.2d 84. Coming next to the second major question for determination on the record, viz., was the title of plaintiffs claiming under Lu......
-
Paulos v. Janetakos.
...and upon the determination of which the judgment was rendered. In re McMillan's Estate, 38 N.M. 347, 33 P.2d 369; Flint v. Kimbrough, 45 N.M. 342, 115 P.2d 84; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; United Shoe Machinery Corp. v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.E......
-
State v. JOHNSON
...And this general rule has been modified in this jurisdiction. In re: McMillan's Estate, 38 N.M. 347, 33 P.2d 369; Flint v. Kimbrough, 45 N.M. 342, 343, 115 P.2d 84; McCarthy v. Kay, 52 N.M. 5, 189 P.2d 450; Paulos v. Janetakos, 46 N.M. 390, 129 P.2d 636, 142 A.L.R. 1237. In McCarthy v. Kay,......
-
Huddleston v. Dwyer
...103 Tex. 382, 128 S.W. 115; Jamison v. Henderson, 81 Ark. 204, 71 S.W.2d 696; Barz v. Sawyer, 159 Iowa 481, 141 N.W. 319; Flint v. Kimbrough, 45 N.M. 342, 115 P.2d 84; Lowe v. Harmon, 167 Or. 128, 115 P.2d 297; Taylor v. Betts, Ariz., 124 P.2d 764; Hay v. Hillegass, 275 Pa. 497, 119 A. 588;......