King v. Smith
| Decision Date | 10 February 1928 |
| Docket Number | No. 26433.,26433. |
| Citation | 173 Minn. 524,218 N.W. 102 |
| Parties | KING et al. v. SMITH. |
| Court | Minnesota Supreme Court |
Appeal from Municipal Court of Minneapolis; Manley L. Fosseen, Judge.
Action by A. Fay King and others, trustees under the will of Silas King, deceased, against L. O. Smith. From an order striking out an answer as sham and frivolous and ordering judgment for plaintiffs, defendant appeals. Affirmed.
W. H. McDonald, of Minneapolis, for appellant.
Bartlett & Bartlett, of Minneapolis, for respondents.
This is an action brought on a promissory note for $700, dated May 1, 1924. The note was executed by appellant in favor of A. Fay King, Alice S. King Bell, and William Luedke, executors of the estate of Silas King, deceased, who died August 28, 1923. This note was thereafter indorsed and delivered to the same individuals as trustees of a trust created under the provisions of the last will of said Silas King. There was no dispute as to the making, execution, and delivery of the note, or as to the respondents being the owners thereof.
The appeal is from an order striking out the answer as sham and frivolous.
1. The complaint was in the usual form in a suit on a promissory note. The answer, dated April 5, 1927, interposed the defense of usury, alleging that, on or about March 24, 1922, appellant borrowed from Silas King $1,000, represented by a note for that amount bearing 6 per cent. interest; that said King had received from the defendant $250 in addition to the interest provided in said note; that instead of $1,000 she received but $750. It was further alleged that on May 2, 1924, the respondents, as executors, procured her to make, execute, and deliver the note set forth in the complaint after the defendant had made payments on the original claim of more than $300; that the note here sued upon was a renewal of said $1,000 note; and that both notes were usurious and void.
Respondents' then attorney, Paul S. Carroll, upon the pleadings and upon his own affidavit and that of Alice S. King Bell, made April 11 and April 13, 1927, respectively, applied to the court for an order striking out the answer as sham and frivolous and for judgment as demanded in the complaint.
The Bell affidavit alleged that appellant had filed a claim against the estate of Silas King in the sum of approximately $800. The first item of the claim was: The other items were principally for services claimed to have been rendered. (The record is not clear as to whether the claim was for $840 or $855.)
It is further stated in the Bell affidavit that, on or about May 1, 1924, said affiant Bell, together with William Luedke, one of the other trustees, and H. G. Carleton, went to the office of appellant to interview her concerning said claim against the estate; that at that time they informed said appellant that they were in possession of four notes, aggregating the sum of $1,550, signed by said appellant and payable to Silas King, which said notes were respectively for $100, $150, $1,000 and $300; that said appellant at that time admitted the execution of said notes and at no time made any claim of usury on any of them; that a stipulation was entered into by and between the said appellant and the said respondents, which stipulation was as follows:
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