Mitchell v. Joplin Nat. Bank

Decision Date04 March 1918
Docket NumberNo. 18895.,18895.
Citation201 S.W. 903
PartiesMITCHELL v. JOPLIN NAT. BANK.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by S. Duffield Mitchell against the Joplin National Bank. Judgment for plaintiff, and defendant appealed to the Springfield Court of Appeals, which transferred the cause to the Supreme Court for want of jurisdiction on the ground that a federal question was involved. Cause retransferred to the Springfield Court of Appeals.

Geo. J. Grayston and A. E. Spencer, both of Joplin, for appellant. S. Duffield Mitchell and John W. McAntire, both of Joplin, for respondent.

BOND, P. J.

I. Action against a national bank to recover double the amount alleged to have been collected as usurious interest. The petition is drawn under two federal statutes, to wit:

Section 5197, Rev. St. U. S. (U. S. Comp. St. 1916, § 9758), allows a national bank to "take, receive, reserve, and charge on any loan or discount made, * * * interest at the rate allowed by the laws of the state * * * where the bank is located, and no more," etc.

Section 5198 (section 9759) provides:

"The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carried with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same, provided such action is commenced within two years from the time the usurious transaction occurred," etc.

The defendant answered by admitting its corporate character and denying the other allegations of the petition, with the further defense that, if any interest was paid by plaintiff in excess of the 8 per cent. contracted, the action was not brought within the time allowed for actions of this character, and further that, if interest was paid by plaintiff in excess of the 8 per cent. rate, it was the result of a mistake on the part of both parties and not knowingly or intentionally done. Plaintiff replied by a denial of the new matter contained in the answer.

The evidence tended to show that on April 24, 1908, the defendant bank agreed to lend plaintiff the sum of $4,000 to be secured by a deed of trust on certain land, and, as that deed could not be executed then, because of the absence of plaintiff's wife in California, an arrangement was made for the execution of a note for $3,000 to be signed jointly by plaintiff and Mrs. V. F. Church; that said note was made payable on demand with the understanding that it would be canceled and returned to the makers upon delivery to the bank of a note and deed of trust for $4,000, duly executed by plaintiff and his wife; that the sum of $3,000 was then paid to plaintiff, who then went to California, where he and his wife executed the note for $4,000, dated April 29, 1908, due 90 days after date, with interest at 8 per cent. "from due," and also executed the deed of trust given as security for the note; that the note and deed were delivered to defendant by Mrs. Church, and the difference between the amounts of the two notes, less $80 discount, was paid to her for plaintiff; that $1,000 was paid on August 25, 1908, and duly credited on the back of the note; that on June 25, 1908, V. F. Church paid $306.67, which amount was credited on the back of the note as "interest to date"; that plaintiff denied the authority of Mrs. Church to make this payment for him, but insisted this amount should have been credited on the principal for the reason that, the bank having accepted usurious interest, the principal note ceased to bear interest; that the transactions between the parties were conducted by Mrs. Church for plaintiff, and Mr. Waite for the bank; that in figuring interest their computation was made on the basis of $4,000 without taking into account the discount of $80 which was deducted at the time the $1,000 was paid to plaintiff, or that the $1,000 was paid to plaintiff at a later date.

The case was tried by the court, a jury being waived, and judgment was rendered in favor of plaintiff and against defendant for $1,761.90.

An appeal was duly granted to the Springfield Court of Appeals, and was by that court transferred to this court for want of jurisdiction, on the ground that "a federal question" was involved.

Appellant's assignments of error are that there can be no recovery unless usurious interest was knowingly collected; that the evidence does not warrant such a finding; that the last payment of interest was on June 25, 1909, and, if usurious, the statute of limitations runs from that date, and hence this suit was not brought within the two years allowed by the statute.

II. Before taking cognizance of this appeal, it is necessary to determine the correctness of the view expressed by the Springfield. Court of Appeals that its jurisdiction was excluded under the provisions of the Constitution of 1875, art. 6, § 12, and the amendment thereof in 1884, § 5. As far as pertinent to the matter in hand, these provisions of the Constitution vested exclusive jurisdiction in this court "in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question." In accordance with the obvious import of this language, it has been repeatedly ruled in this state that the interpretation and application of the terms of a federal statute whose validity is not drawn in question by either party are not within the intendment of the constitutional provision and do not, of themselves, suffice to bring an appeal to this court which would otherwise be lodged in one of the courts of appeals. Live Stock Co. v. Railroad, 157 Mo. loc. cit. 519, 57 S. W. 1070, affirmed and quoted in Schwyhart v. Barrett, 223 Mo. loc. cit. 499, 122 S. W. 1049; Vaughn v. Railroad, 145 Mo. 57, 46 S. W. 952; Specialty Co. v. Glass Co., 243 Mo. loc. cit. 358, 147 S. W. 482, and cases cited; Fish v. R. R., 263 Mo. loc. cit. 119, 172 S. W. 340, Ann. Cas. 1916B, 147. The Supreme Court of the United States has construed likewise the same clause in section 237 of the Judicial Code. Baltimore, etc., R. R. v. Hopkins, 130 U. S. 210, 9 Sup. Ct. 503, 32 L. Ed. 908; Kennard v. Nebraska, 186 U. S. 304, 22 Sup. Ct. 879, 46 L. Ed. 1175; Florida Cent., etc., Ry. v. Bell, 176 U. S. 321, 20 Sup. Ct. 399, 44 L. Ed....

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9 cases
  • Laumeier v. Sammelmann
    • United States
    • Missouri Court of Appeals
    • 8 December 1925
    ... ... at one time and treated as one motion. Gast Bank Note & Lithographing Co. v. Fennimore Ass'n, 79 Mo.App ... 612. (7) The ... Supreme Court in Joplin & Western Ry. Co. v. Kansas City, ... Ft. Scott and Memphis R. Co., 135 ... ...
  • U.S. ex rel. v. Lufcy
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    • Missouri Supreme Court
    • 2 April 1932
    ...Lumber Co., 32 S.C. 96, 222 U.S. 300; Dupasseur v. Rochereau, 21 Wall. 120; Fish v. Railroad, 263 Mo. 119, 172 S.W. 340; Mitchell v. Joplin Natl. Bank, 201 S.W. 903; Factors etc., Co. v. Murphy, 111 U.S. 738. (2) Both the order of November 18, 1925, and the order of May 12, 1927, were made ......
  • Bostian v. Milens
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    • Missouri Supreme Court
    • 2 July 1945
    ... ... Purchasing Co. v. Brennan (Mo. Sup.), 32 S.W. 2d 81; ... Mitchell v. Joplin Nat. Bank (Mo. Sup.), 201 S.W ... 903, and cases therein ... ...
  • Mitchell v. Joplin Nat. Bank
    • United States
    • Missouri Court of Appeals
    • 25 June 1918
    ...(Mitchell v. National Bank, 184 Mo. App. 483, 170 S. W. 674); but the Supreme Court retransferred the cause to this court (Mitchell v. National Bank, 201 S. W. 903). April 24, 1908, defendant agreed to loan plaintiff $4,000 for 90 days, the loan to be secured by a mortgage lien on 85 acres ......
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