Kelly v. Brown

• Decision Date: 15 February 1916
• Docket Number: 6639.
• Citation: 155 P. 590,55 Okla. 628,1916 OK 211
• Parties: KELLY ET UX. v. BROWN.
• Court: Oklahoma Supreme Court

155 P. 590

55 Okla. 628, 1916 OK 211

KELLY ET UX. v. BROWN.

No. 6639.

Supreme Court of Oklahoma

February 15, 1916

Syllabus by the Court.

A verdict will not be reviewed as to the facts on appeal if there is sufficient evidence to support it.

Section 1006, Rev. St. 1910, is as follows: "In all cases where an action is brought by any person to recover the penalty prescribed by section 1005, supra, the prevailing party in such action shall be entitled to recover as part of the costs, a judgment against the other party to such action for a reasonable attorney's fee in a sum not less than $10.00 to be fixed by the court, for the use and benefit of the attorney of record of the prevailing party, together with all costs." Held, that where, in an action to recover a money judgment, the defendant sets up the plea of usury and alleges the payment of usurious interest and prays for judgment for double the amount of usury so paid and the trial court finds against the defendant on such issue, the findings of said court will not be disturbed on appeal; and held, further, that in such case the action of the trial court in taxing attorney's fees to the defendant as the losing party will not be disturbed in this court unless it is apparent that manifest injustice has been done.

Commissioners' Opinion, Division No. 4. Error from District Court, Tulsa County; L. M. Poe, Judge.

Action by E. M. Brown against Samuel Kelly and another. Judgment for plaintiff, and defendants bring error. Affirmed.

C. N Simon, of Tulsa, for plaintiffs in error.

Bell & Fellows, of Tulsa, for defendant in error.

ROBBERTS C.

This case comes from the district court of Tulsa county, and was an action to foreclose a real estate mortgage. The parties will be designated plaintiff and defendants, the same as below. The petition contained the usual allegations in foreclosure proceedings--prayed for judgment for $285, with interest and costs and foreclosure of mortgage. The defendants answered, in substance, as follows:

"First, a general denial. Second, the defendants deny that they borrowed any money from E. M. Brown. Third, that defendants did borrow and receive from Charles Bryan about the sum of $260, and that Charles Bryan, without the knowledge or consent of defendants, made the note and mortgage payable to E. M. Brown; that the note and mortgage was made for $285; that $25 usurious interest was charged defendants for the making of said loan contrary to law; that defendants paid $18.50 usurious interest after the execution of said note and mortgage, and that no credit was given for same; that a total of $43.50 usury was charged and received by plaintiff; that defendants in writing demanded the payment of the usurious interest, and payment was refused by plaintiff. Defendants prayed a counterclaim of $87 (double

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