National Credit Co. v. Franklin
| Decision Date | 08 September 1936 |
| Docket Number | 26283. |
| Citation | 60 P.2d 744,177 Okla. 417,1936 OK 494 |
| Parties | NATIONAL CREDIT CO. v. FRANKLIN et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Error in an instruction to the jury is not a ground for reversal, where the court, before the cause is submitted to the jury, calls the jury's attention to the error and gives a proper instruction.
2. The Supreme Court, in the absence of a statute authorizing it to do so, is without authority to allow an attorney fee to the successful party for services of his attorney in the Supreme Court, in an action brought under the usury statute to recover double the amount of interest paid.
Appeal from Court of Common Pleas, Tulsa County; John R. Woodard Judge.
Action by Mattie B. Franklin and another against the National Credit Company. Verdict and judgment for plaintiffs, and defendant appeals.
Affirmed.
Hickman & Ungerman, of Tulsa, for plaintiff in error.
Joe W Simpson and W. N. Maben, both of Tulsa, for defendants in error.
The defendants in error were the plaintiffs in the court below and the plaintiff in error was the defendant below, and they will be referred to in this opinion as they appear in the trial court.
The plaintiffs in their petition allege that they paid the defendant the sum of $56.60 as interest, and they sued to recover back, under the usury statute, twice the amount of the interest paid, or a total of $113.20, for which amount judgment was prayed. The case was tried to a jury, and the jury returned a verdict in the sum of $113.20. The court fixed the attorney's fee for the use of the plaintiffs' attorneys at $75.
The defendant apparently concedes that there was sufficient evidence to support the verdict and judgment, and, while numerous assignments of error are made in the petition in error, the only complaint which is made in its brief is that the trial court committed error in giving certain erroneous instructions to the jury.
The statute under which the plaintiffs base their claim is section 9519, O.S.1931. Under this statute there are at least two situations where usury may be set up. In the first instance, if a greater rate of interest than is allowed by law has been paid, the person by whom it was paid may recover, from the person taking or receiving the same, twice the amount of the entire interest paid. The other situation arises where excessive or usurious interest is charged, etc in which event when a suit is brought against the maker thereof on the note or other evidence of the indebtedness the defendant may plead, as a set-off or counterclaim, twice the amount of the entire interest collected, reserved, charged, or received in such action.
This action is clearly one brought where it is alleged that the plaintiff had paid the interest, and notwithstanding the issues were framed on that theory and the whole testimony was to the effect that the plaintiffs had paid the interest, the court, in its instructions, and particularly instruction No. 4, said:
Obviously, this instruction was erroneous in that the jury were advised that the plaintiff could recover if it should find that more than 10 per cent. per annum had been charged. The instruction should have been that the plaintiffs could recover if the jury should find that the plaintiffs had paid interest in an amount in excess of the legal rate, as alleged in their petition.
It will be observed, however, that the defendant took no exceptions to each instruction but attempted to take an exception to the instructions as a whole.
After the court had instructed the jury, the following proceedings appear in the record:
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