Louisville Sav., Loan & Bldg. Ass'n v. Harbeson
| Decision Date | 25 May 1899 |
| Citation | 51 S.W. 787 |
| Parties | LOUISVILLE SAVINGS, LOAN & BUILDING ASS'N v. HARBESON, Circuit Judge, et al. [1] |
| Court | Kentucky Court of Appeals |
"Not to be officially reported."
Motion by the Louisville Savings, Loan & Building Association for a writ of prohibition against James P. Harbeson, circuit judge of Fleming county. Denied. Rehearing denied.
W. G Dearing, for petitioner.
Jos. H Power, John S. Power, G. A. Cassidy, J. D. Pumphrey, and B G. Grannis, for defendant.
We are inclined to think that the Fleming court is not proceeding out of its jurisdiction in assuming the right to try the cases now before us in the motion for writs of prohibition. It may be that the business of the corporation, if its affairs are in process of liquidation, or if the corporation is insolvent, can be wound up, and the equities of all stockholders adjusted, to better advantage in a single suit in Jefferson county, where its home office is located. But if it is made to appear in these Fleming county suits brought to recover usury that the borrowing members have heretofore received or been credited with the full book value of their stock, without regard to the embarrassed or insolvent condition of the concern, it may be they can be required to bear their proportionate share of the losses at least to the extent of, if not beyond, their alleged claims for usury. It is to be kept in mind, of course, that, if the demand for usury is barred by time, so is the corporation's demand for the members' share of losses. Motion for writ denied.
On Rehearing.
(June 9, 1899.)
The suits of the various plaintiffs in the Fleming circuit court are for the recovery of usury growing out of contracts of borrowing and lending made in that county. They are based on the implied obligation resting on the lender to repay to the borrower any excess of legal interest collected. These contracts were made in Fleming county, and under Civ. Code Prac. § 72, the actions are maintainable in the Fleming circuit court. It is true that the original petitions did not disclose the fact that the contracts were made in that county, but this was made to appear in an amended petition in each of the cases. The fact that the contracts were there made was true when the original petitions were filed, although such fact was not made to appear until after the motion had been made here for the writ. This does not affect the question of whether the...
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