Logan v. Ballard
| Decision Date | 12 March 1907 |
| Citation | 57 S.E. 143,61 W.Va. 526 |
| Parties | LOGAN v. BALLARD et al. [a1] |
| Court | West Virginia Supreme Court |
Submitted January 22, 1907.
Syllabus by the Court.
A bill under section 7, c. 96, Code 1899 [Code 1906, § 3432], for relief against a judgment on the ground of usury, is one for discovery and relief. It must state that the plaintiff is unable, for want of evidence, to prove the usury, and must call for discovery under oath by the defendant.
Labor Day is not a nonjudicial day. A decree rendered on it is neither void nor erroneous. A notice may be acted upon on that day without waiting for the next secular day.
A judge in vacation may dissolve an injunction, but cannot dismiss the bill.
Appeal from Circuit Court, Monroe County.
Bill by J. D. Logan against I. N. Ballard and others. Decree for defendants, and plaintiff appeals. Reversed in part and affirmed in part.
John Osborne, for appellant.
J. H Crosier, for appellees.
I. N Ballard, as guardian of Willie Luige, recovered a judgment against J. D. Logan on a promissory note. Logan obtained an injunction against its enforcement on the ground of usury in the note, alleging that the whole note represented usury. He made complaint of denial of defense, but this is not relied upon. In vacation the injunction was dissolved and the bill dismissed, and Logan appeals.
The jurisdiction of this court is challenged on the claim that the amount is not enough. There were two notes of $800 and $220. The effort is to guess at the usury charge as $300 and apportion it between the notes, and attribute only $60 to this note. We do not know whether the other note is paid. The debtor is not compelled to apportion. His bill claims that all the note sued on is made up of usury. That is the claim of the bill, and that is the test. Faulconer v Stinson, 44 W.Va. 546, 29 S.E. 1011. The bill seeks to get rid of the whole judgment, $230.60. The jurisdiction is very plain. Was the injunction properly dissolved? That is tested by the bill; there being no answer. The bill alleges that the judgment rests on a note wholly for usury. The claim for equity jurisdiction must rest on Code 1899, c. 96, § 7 [[Code 1906, § 3432]. Can a party go into equity to affect a judgment for usury? The general rule is that he cannot. Usury is a good defense in an action at law, and there is no reason why the judgment is not final as res judicata in this instance as in others, precluding all defenses pleadable at law. Such is the general law. 29 Am. & Eng. Ency. L. (2d Ed.) 557; Webb on Usury, § 358. But in this state we have section 7, c. 96, Code 1899 [Code 1906, § 3432]. It says that any borrower of money may exhibit his bill in equity against a lender, "and compel him to discover on oath the money or thing really lent, and all bargains, contracts or shifts relative to such loan, and the interest or consideration of the same, and, if it appear that more than lawful interest was reserved, the lender shall recover his principal money," with 6 per cent. interest. Does this give jurisdiction in equity in every case? Does it give such jurisdiction in every case of judgment impeached for usury? After a full defense for usury at law, is the equity court still open? I think not, though the section makes no exception of such case or of any judgment. We must give it a construction. This section was passed in 1796. At that time the debtor was not a competent witness to prove the usury nor could the creditor be called to do so. Usurious transactions were secret, and much against the policy of the law, and were covered up by many shifts and devices. Hence the need of means to secure evidence to prove the usury, and this law was passed to compel the lender to discover the truth. The bill is one of discovery. We cannot think that where the borrower was full-handed with proof, and thus could defend at law, it was designed to let him into equity after judgment, whether he had made or not made defense at law. Suppose the note on which the judgment rests calls on its face for usurious interest. Is it possible that the debtor can in that case, when he has failed to defend at law, go into equity? The Supreme Court of the United States, in construing this Virginia statute, in Brown v. Swan, 10 Pet. 497, 9 L.Ed. 508, on a bill in equity to enjoin proceedings on a judgment, said that a bill under this statute was one of discovery; that it must state what is essential in all such bills of discovery, "that the complainants are unable to prove the facts sought from the conscience of the defendant by other testimony," italicizing these quoted words. It held the bill deficient for want of such averment. The court said that a bill under this act was a bill to discover facts which could not be proven according to the existing forms of procedure; that the jurisdiction of equity I think this is spoken by the words of the section. The bill is to "compel him to discover under oath." I notice that Judge Staples, in Terry v. Dickinson, 75 Va. 475, in considering a bill, points out as a defect that, "so far from calling for a discovery from the appellee, it avers that the appellant desires none, and that he can prove that the bond was executed for a usurious consideration." So does the bill, in effect, in this case. It contains no averment that the plaintiff is without evidence to prove the usury, or is under any kind of need of discovery; but says that, "should this court give him the opportunity to do so, he will show where the same shall (should) have been purged of the usury." The necessity of discovery should be stated.
Such may not have been the understanding in Virginia. But an examination of the cases will not, I venture to say, show pointed, decisive cases to the reverse. Some expressions so indicate. In those cases we do not see for certainty whether or not the bills contained averments such as the construction by the federal Supreme Court demands. Fox v. Taliaferro 4 Munf. 243, looks that way; but it is not clear and the statute was not discussed. Rankin's Ex'r v. Rankin, 1 Grat. 153, admits such defense by answer against a judgment. It was not a bill. The statute was not discussed. In Brown v. Toell, 5 Rand. 543, 16 Am. Dec. 759, the opinion assumes that a debtor, even after judgment, may go into equity; but that is obiter opinion, as the case only decides that the bill was bad for relief. That is the decision. So with Bloss v. Hull, 27 W.Va. 503. Martin v. Hall, 9 Grat. 8, does not consider the statute. It may be said to assume jurisdiction, but that is not the point of decision. Ruffin v. Bank, 90 Va. 708, 19 S.E. 790, was not a case of judgment, but to enjoin actions at law for usury. And it seems to have been a proper bill of discovery. In Greer v. Hale, 95 Va. 533, 28 S.E. 873, 64 Am. St. Rep. 814, the opinion says that if it were an original proposition it would be questionable whether a defendant who has had ample opportunity to make his defense at law should even in a chancery suit to enforce the judgment make the defense of usury, but it states that it was settled in Virginia, citing Young v. Scott, 4 Rand. 418, and Bank v. Fugate, 93 Va. 821, 23 S.E. 884. The Young Case was one in which the bill called for discovery under oath. It did not allege that the plaintiff had no evidence to prove usury, but it was a bill of discovery. It does not decide that a bill not for discovery could be sustained. Bank v. Fugate was a bill for discovery. The Greer Case says equity will relieve against a judgment by default. What is the difference between the...
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