Kreibohm v. Yancey
| Decision Date | 05 February 1900 |
| Citation | 55 S.W. 260,154 Mo. 67 |
| Parties | KREIBOHM, Appellant, v. YANCEY, et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
Kinealy & Kinealy for appellant.
(1) The court erred in refusing to substitute King as plaintiff in the case. R. S. 1889, sec. 2204; Childs v. Thompson, 81 Mo. 337. (2) It was erroneous to permit defendant King to be questioned as to the rate of interest usually charged by the National Loan Company in its business and as to his testimony on this point on the former trial. State v Harold, 38 Mo. 496; State v. Reavis, 71 Mo 419; State v. Myers, 82 Mo. 558; Iron Mt. Bank v. Murdock, 62 Mo. 74; Hays v. Railroad, 15 Mo.App. 584. (3) The court after having accepted from the jury a verdict as their verdict in the cause, erred in afterwards returning this to the jury and permitting them to amend their verdict, and further erred in receiving the second verdict from the jury after the court had announced the adjournment until the next day. State v. Ostrander, 30 Mo. 13; Bensley v. Haeberle, 20 Mo.App. 648; Collins v. Kamman, 55 Mo.App. 462. (4) Defendants' instruction marked (a) is erroneous. Strouds Jud. Dic., title Exaction; Websters' Dic., title, Exaction; Johnson v. Vette, 77 Mo.App. 563. Defendants' instruction marked (b) is erroneous. Defendants' instruction marked (c) is erroneous. New Hampshire Cattle Co. v. Bilby, 37 Mo.App. 43; Jones on Chat. Mtgs., sec. 64; Rubey v. Coal & Min. Co., 21 Mo.App. 159. Defendants' instruction marked (e) is erroneous. Chapman v. Kerr, 80 Mo. 158; Kirkendall v. Hartsock, 58 Mo.App. 234; Herring v. Corder, 49 Mo.App. 378. (5) Section 2 of the act relating to interest and usury, Laws of Missouri 1891, p. 170, is unconstitutional and void and plaintiff's instruction to that effect should have been given and defendants' instruction based upon the act should have been refused. It is in conflict with section 1 of the 14th Amendment to the Constitution of the United States, and of the following sections of Constitution of Missouri, viz.: sec. 4 of art. II; sec. 30 of art II; and sec. 53 of art. IV. Tiedeman on Lim. of Police Power, sec. 94; Cooley's Const. Lim., p. 704; Ranson v. Hays, 39 Mo. 445; Hill v. Taylor, 125 Mo. 331; State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400; State v. Loomis, 115 Mo. 307; Lowry v. Rainwater, 70 Mo. 152; St. Louis v. Hill, 116 Mo. 527.
Daniel Dillon and O. A. Appel for respondent.
(1) This court can neither consider the motion for new trial, nor instructions set out in appellant's abstract, for the reason that they have not been made a part of the record of this cause. They can be made part of the record only by being inserted in the bill of exceptions, and they have never been so inserted. R. S. 1889, sec. 2304; Jefferson City v. Opel, 67 Mo. 394; State v. Griffin, 98 Mo. 672; Arnold v. Boyer, 108 Mo. 310; State v. Gordon, 117 Mo. 387; State v. Wray, 124 Mo. 543; Lloyd v. Thurman, 69 Mo.App. 145; Harper v. Oil Co., 74 Mo.App. 644; Sugar Refining Co. v. Massey, 75 Mo.App. 466. (2) There was no error in refusing to substitute King as plaintiff in this action. Clearly plaintiff should not be allowed to escape a judgment by having another man substituted in his place. Sec. 2204, R. S. 1889, has no application to cases of replevin where the plaintiff has given bond and taken the property. In such cases the plaintiff can not escape the judgment against him by transferring, or attempting to transfer, his interest in the property taken, and having another person substituted in his stead as plaintiff. Collins v. Hough, 26 Mo. 149; Berghoff v. Heckwolf, 26 Mo. 511; Ramey Ad. v. Thomas, 45 Mo. 111. (3) For the purpose of impeaching the witness, it was clearly competent to ask him if he was not engaged in the running of a business in which usurious interests was exacted and received, just as it would have been competent to ask him if he was engaged in any other illegal or disreputable business. Muller v. Hesp. Ass'n, 5 Mo.App. 390; s. c., 73 Mo. 244. (4) No error was committed by the court in directing the jury as to the form of their verdict, so as to include in one paper, or verdict, all their findings. It was the duty of the trial court to see that the verdict was in proper form. Henley v. Arbuckle, 13 Mo. 209; State ex rel. v. Rombauer, 44 Mo. 592; State v. Chumley, 67 Mo. 41; Cattell v. The Dispatch Publishing Co., 88 Mo. 356. (5) Statutes prohibiting usurious rates of interest have been in force in Missouri for very many years, if not from the first organization of the State Government, and they have always been upheld by the courts. Weimer v. Shelton, 7 Mo. 237; Marks v. Bank, 8 Mo. 316; Wiley v. Hight, 39 Mo. 130; Hemery v. Marksberry, 57 Mo. 399. And the validity of this very statute has been recognized in many cases. Drennon v. Dallincourt, 56 Mo.App. 132; Johnson v. Vette, 77 Mo.App. 563.
This is an action in replevin begun before a justice of the peace in the city of St. Louis. The statement, affidavit and bond are in statutory form, and the property under the order of the justice was taken by the constable from the possession of the defendants, and delivered to the plaintiff.
The property was claimed by the plaintiff under a chattel mortgage, as follows:
The plaintiff obtained judgment for the property in the justice court and the defendant appealed therefrom to the circuit court, city of St. Louis, where upon a trial de novo the judgment was for the defendants, and the plaintiff appeals to this court.
On March 17, 1897, after the case had reached the circuit court the plaintiff filed therein an assignment of his cause of action to John A. King, and his petition asking that said King be substituted for him as plaintiff therein. Thereupon the court made the following order:
"Comes now the plaintiff by attorney and presents to the court his petition this day filed, praying for an order substituting the name of John A. King as plaintiff in this cause in the place and stead of Albert O. Kreibohm, and presents also to the court his assignment of the cause of action herein to said John A. King and said King's written request to be so substituted, and the court having heard and duly considered the same doth order that said petition will be sustained if a new replevin bond conditioned according to law with sureties to be approved by the court is filed in this cause on or before March 20, 1897, otherwise said motion will be overruled."
And afterwards on the 23d of March, 1897, the court made the following order:
"It appearing to the court that no new replevin bond has been filed herein as required by the order entered in this cause March 17, 1897, within the time required in said order, on motion of defendants by attorney it is ordered by the court that the motion heretofore filed and submitted herein for an order substituting the name of John A. King as plaintiff in this cause in the place and stead of Albert O. Kreibohm be and the same is hereby overruled."
To these orders plaintiff excepted, and now assigns them as error.
The defense set up to plaintiff's action in the circuit court was that the mortgage was made and executed by the said Yancey to secure an indebtedness for which "usurious interest was taken and exacted." That the words "and all other articles connected with the Acme Laundry 2335 Franklin Avenue" were not in said mortgage when it was executed by Yancey, but were inserted afterwards without his knowledge or consent, and that a certain Columbia collar and cuff machine, taken under the writ, was not included in the mortgage.
The main features of the case are disclosed by the following evidence:
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