Garland v. Union Trust Co.
| Citation | 154 P. 676,49 Okla. 654,1916 OK 24 |
| Decision Date | 11 January 1916 |
| Docket Number | Case Number: 6265 |
| Parties | GARLAND et al v. UNION TRUST CO. et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. APPEAL AND ERROR--Case-Made--Time for Making and Serving. Where a case is submitted to the court upon an agreed statement of facts which eliminates all questions of fact, a motion for new trial is not authorized, and the time for making and serving a case-made runs from the date of the rendition of the judgment, unaffected by such motion or the order overruling the same.
2. APPEAL AND ERROR--Motion for New Trial--Necessity--Agreed Statement. In order to obviate the necessity for motion for a new trial when submitting a case to the court upon an agreed statement of facts, there must be an, agreement as to all the ultimate facts, and if the statement merely embraces an agreement as to certain facts, leaving certain ultimate facts to be found by the court from the testimony and evidential facts, the necessity for a motion for new trial to obtain a review of the findings of fact made by the court will not be dispensed with.
3. USURY--Question of Fact. Where instruments executed for the loan of money are apparently fair on their face, and the interest reserved thereby, as disclosed by the terms of the instruments, is within the legal limit, but the claim is made that usury was, in fact, retained, and that such usurious charge is evidenced by a collateral instrument or by some agreement or device intended as a cloak for such usurious transaction, as, for instance, the charging of a commission by the lender, the question as to whether such collateral instrument or such commissions were taken or reserved with the intent to charge a higher rate of interest than that allowed by law, and whether said transaction was a cloak or device to evade the law against usury, is a question of fact for the jury or the court sitting as a jury.
4. APPEAL AND ERROR--Wrongful Dismissal--Reinstatement. Where plaintiffs in error have complied with the law by taking all steps necessary to perfect an appeal to this court, and petition in error in due form with case-made attached thereto is lodged in the office of the clerk of this court within the time allowed by law, and where said petition in error is wrongfully dismissed, the order of dismissal will be set aside, and the cause reinstated and determined on its merits.
Stuart, Cruce & Cruce and L. D. Mitchell, for plaintiffs in error.
Ames, Chambers, Lowe & Richardson, for defendant in error.
¶1 On the -- day of January, 1913, the Union Trust Company, a corporation, and the Union Trust Company, a corporation, trustee, filed suit in the district court of Oklahoma county against plaintiffs in error, who will be referred to as defendants, and R. S. Rowland and Silas Rowland, asking judgment in the sum of $ 50,000 upon 50 certain notes bearing date of May 25, 1912, in the sum of $ 1,000 each, due on different dates, 35 of them maturing June 1, 1918, said notes being made payable to bearer or the registered holder thereof, and also to foreclose a deed of trust or mortgage upon a certain ten-story building in the city of Oklahoma City, given to secure the payment of said notes, which mortgage was made in favor of the Union Trust Company, trustee. The petition alleged the execution of said notes and mortgage, and copies thereof were attached to the petition. The notes bore interest at the rate of 6 per cent. per annum from date until paid, and after maturity at the rate of 10 per cent. per annum. The plaintiff further alleged that its lien upon said property was a first and prior lien, and alleged that the defendants R. S. Rowland and Silas Rowland claimed to have some interest in or title to the real estate in plaintiff's mortgage described, and expressly alleged that the interest or title of said R. S. Rowland and Silas Rowland was inferior to and subject to the lien of plaintiff. The petition further alleged that according to the terms and conditions of said mortgage, plaintiff had elected to declare the entire indebtedness secured thereby due and payable, and prayed judgment for the full amount and for foreclosure of its mortgage, and asked that the interest or title of said defendants R. S. Rowland and Silas Rowland be decreed to be inferior to and subject to plaintiff's lien. Defendants filed answer denying each and every allegation in plaintiff's petition, except such as were therein admitted, and as a second defense admitting the execution of the notes and mortgage or deed of trust sued upon, and delivery of same to plaintiff Union Trust Company, but they alleged that the consideration for same was the loan of $ 50,000, and that plaintiff, through its officers and agents, knowingly and wrongfully, and with intent to violate the laws of the state with reference to the charging of usurious interest, charged, reserved, and received from defendants, and that defendants paid to plaintiff, as interest for the use of said money from the date of the execution of said instruments until December 21, 1912, the sum of $ 2,500 cash, a note for $ 2,750, and interest payments amounting to $ 1,572.22, making a total sum of $ 6,822.22, being interest at the rate of 27 per cent. per annum, and that by reason of such usurious charge defendants were entitled to offset against plaintiff's demand twice said sum so reserved, to wit, the sum of $ 13,644. Other paragraphs of the answer alleged that said transaction was usurious in other particulars than as above stated, but we deem it unnecessary here to state the allegations thereof in detail. By and amendment to the petition a count was added demanding judgment on the note for $ 2,750, and for foreclosure of mortgage by which same was secured, same having matured in the meantime. To the answer plaintiff filed a reply, denying generally and specifically the allegations of new matter therein contained, and alleged that at the time of the execution of said notes, to wit, May 25, 1912, the plaintiff, Union Trust Company, loaned and advanced to said defendants said sum of $ 50,000, and at the time of the execution of said notes and deed of trust defendants paid plaintiff the sum of $ 2,500, and executed and delivered to the Union Trust Company their note for $ 2,750, with interest at 8 per cent. per annum, payable May 25, 1913, secured by a second mortgage upon said property; that the sum of $ 2,500 paid in cash at the time and the sum of $ 2,750 represented by said note, which defendants promised to pay plaintiff on May 25, 1913, together with the several interest payments, alleged to have been made by said defendants, were a part of the interest which accrued upon said loan for the entire time said loan was to run, and were not payments of interest for the dates set forth in the answer and cross-petition of said defendants. The reply then sets out the sums which plaintiff alleges it would have been entitled to charge under its theory of the law and facts, and denies that there was any usury in said transaction. Defendant Silas Rowland filed a disclaimer. W. J. Walker, who was the assignee of the Rowland mortgage, filed answer and cross-petition, asking judgment against plaintiffs in error on certain notes in the sum of $ 15,750, with ten per cent. interest thereon from date until paid, and for foreclosure of a certain mortgage upon said property. Issues were joined upon this answer or cross-petition, and the cause came on for trial on the 26th day of September, 1913, all of the parties being present, and it was agreed that the issues between plaintiff and defendants and the issues between defendants and defendant Walker should be tried separately; and thereupon the parties dictated into the record a stipulation or agreement as to certain facts about which there was no dispute, and the notes and mortgages sued upon were introduced in evidence, and the issues between plaintiff and defendants were argued to the court and taken under advisement. On the 29th day of September, 1913, the cause coming on for hearing upon the answer and cross-petition of defendant Walker, the parties appeared and waived a jury, and the matter was continued until the 20th day of October, 1913, at which time same was heard, and on said day the court rendered judgment in favor of plaintiff and against defendants in the sum of $ 52,666.67, with interest from October 20, 1913, at six per cent. per annum, together with ten per cent. additional as attorney's fees, and foreclosure of said deed of trust, and also rendered judgment in favor of plaintiff and against defendants on the note for $ 2,750 and for foreclosure of the mortgage by which same was secured, and found that the interest and title of defendants Silas Rowland and W. J. Walker in and to the property described was inferior and subject to the judgment of plaintiff, and on said day rendered judgment upon the issues between defendants and defendant Walker in favor of defendant Walker in the sum of $ 12,600, and decreed a foreclosure of his mortgage upon said property, subject to the judgment of the Union Trust Company. Motions for new trial were filed and overruled, and case-made duly prepared and served. Upon the case being lodged in this court, plaintiff filed motion to dismiss upon the ground that, the issues between plaintiff and defendants having been tried upon an agreed statement of facts, no motion for new trial was necessary, and case-made was not prepared and served within the time allowed by law. Upon consideration of this motion an opinion was rendered dismissing the cause, and petition for rehearing was denied. Leave was granted to file second petition for rehearing, which, upon consideration, was sustained, and the former opinion withdrawn. Pending this latter action mandate had issued and been transmitted to the trial court, and by it spread upon the journal and order of sale issued upon the judgment and the property...
To continue reading
Request your trial