Ocobock v. Nixon

• Decision Date: 11 May 1899
• Citation: 57 P. 309,6 Idaho 552
• Parties: OCOBOCK v. NIXON
• Court: Idaho Supreme Court

57 P. 309

6 Idaho 552

OCOBOCK v. NIXON

Supreme Court of Idaho

May 11, 1899

USURY-JUDGMENT UPON STIPULATION.-Plaintiff brought action upon a usurious contract; judgment was entered upon stipulation of parties in favor of plaintiff, as prayed in complaint, from which defendant appealed; held, that the judgment so entered, being in contravention of the usury laws of the state, the same was erroneous. The general rule, that where judgment is entered upon the agreement and consent of parties appeal will not lie, does not apply to a case where such agreement and judgment is in contravention of the positive provisions of a statute.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded, with direction.

James W. Reid, for Appellant.

No brief filed.

James W. Poe and James E. Babb, for Respondent.

Where an order or judgment has been entered by the court below on the agreement of the parties, as was done by the court below in this cause, and not pursuant to the judgment or action of the court, neither party has any remedy by appeal from such action of the court done by consent of the parties, because it is considered the parties have no right to allege error in that to which they have consented, or to seek reversal of the action of the court below, which they have caused by their request and consent, without having made a motion to the court below asking for correction of the error, and giving the court below an opportunity to take action upon the matter, which opportunity it had not previously had, because having relied upon the consent and stipulation of the parties. (Schmidt v. Oregon Gold Min. Co., 28 Or. 9 52 Am. St. Rep. 759, 40 P. 406, 1014; Erlanger v Southern Pacific R. Co., 109 Cal. 395, 42 P. 31; 2 Ency. of Pl. & Pr. 99; Atkinson v. Manks, 1 Cow. 691; Peterson v. Swan, 119 N.Y. 662, 23 N.E. 1004; Chapin v. Perrin, 46 Mich. 130, 8 N.W. 721; In re Pemberton, 40 N. J. Eq. 520, 4 A. 770.) Assuming for argument that the foregoing contention of respondent against the right of appellants to maintain this appeal is untenable and that the appeal is to be heard upon the merits, counsel for respondent admit that the face of the records shows that the note secured by mortgage sought to be foreclosed was usurious within the decision of this court in Vermont etc. Trust Co. v. Hoffman, 5 Idaho 376, 49 P. 314, and later cases, because the note appears on the face of the record to stipulate for interest on interest in advance of the maturity of the interest. That being the case, the judgment must be reversed, but at the cost of the appellants, as we contend. Where judgment is reversed on a point not made in the court below, cost may be withheld in the appellate court. (Snell v. Race, 78 Mich. 334, 44 N.W. 286; Capwell v. Baxter, 58 Mich. 571, 25 N.W. 493; Clark v. Raymond, 27 Mich. 456; Hersey v. Milwaukee Co., 16 Wis. 185, 82 Am. Dec. 713; Frowner v. Johnson, 20 Ala. 477.) Also, unless the point should have been called to the attention of the trial court by the successful appellant, in which case he must pay costs. (Roberts v. Hamilton, 15 Ind. 305; Jones v. Phelps, 2 Barb. Ch. (N. Y.) 440; Steward v. Green, 11 Paige (N. Y.), 535; McMullen v. Jewill, 3 La. Ann. 139; Wilson v. Lyon, 51 Ill. 530; Davidson v. Bond, 12 Ill. 84.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This action was brought to foreclose a mortgage on real property. No answer was filed by the defendants, or either of them. Judgment and decree of foreclosure were entered under a stipulation of the parties. By the terms of the stipulation it is agreed "that the plaintiff may have judgment and decree as prayed for in his complaint, and that no execution or order of sale shall issue thereon until the expiration of five months from the rendition of said decree." Decree and judgment were rendered in accordance with such stipulation on April 7, 1898. The notes and mortgage sued on are set forth in the complaint by copy, from which it appears that the same come within the inhibition of the usury statutes of Idaho and the ruling of this court in the cases of Vermont etc. Trust Co. v. Hoffman, 5 Idaho 376, 49 P. 314, and Vermont etc. Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104. But it is urged that, as this question was not raised in the lower court, it cannot be made a subject of review in the appellate court; that the error, if any was committed, was by the consent of both parties, with a full knowledge of all the facts, and in fact was not the error...