Purvis v. Frink
| Decision Date | 21 March 1911 |
| Court | Florida Supreme Court |
| Parties | PURVIS, Sheriff, et al. v. FRINK. |
Appeal from Circuit Court, Columbia County; B. H. Palmer, Judge.
Appeal by Talulah H. Frink against D. W. Purvis and others. Decree for plaintiff, and defendants appeal. Affirmed.
Syllabus by the Court
All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration.
Where a contract is found to be usurious, only the actual principal sum thereof can be enforced either at law or in equity; section 3106 of the General Statutes of 1906 expressly providing that 'the entire interest' shall be forfeited. This provision is applicable, not only to the interest from date to maturity, but to the interest after maturity as well.
Usury in a loan will not prevent the recovery of reasonable attorney's fees, where foreclosure is necessary to enforce the payment of the principal sum of the loan. Where the amount of attorney's fees found by the master in his report, which report was confirmed by the circuit court, is supported by the testimony, and, in view of the protracted nature of the litigation, both in the circuit court and in the appellate court, does not appear to be unreasonable or excessive, such amount will not be disturbed.
COUNSEL A. J. Henry, for appellants.
A. B. & C. C. Small, for appellee.
For the third time the appellant brings this case here. The first appeal was from an interlocutory order denying the application for a change of venue, which order was affirmed. 55 Fla. 715, 46 So. 171. The second appeal was from the final decree. 57 Fla. 519, 49 So. 1023, wherein a statement of the facts will be found. Upon this appeal the appellants have assigned several errors, and the appellee has also filed cross-assignments, in accordance with the provisions of special rule 4 of Rules of the Supreme Court, relating to appeals in chancery, found on page 31 of such Rules, prefixed to 51 Fla., 37 South. xiv. We shall not discuss these assignments in detail, but only such of them as we think merit discussion.
We would call attention at the outset to the principle, which we have several times had occasion to announce, that all the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration. McKinnon v Johnson, 57 Fla. 120, 48 So. 910, wherein prior decisions of this court will be found cited.
As will be readily seen by reference to the opinion rendered on the second appeal in this case (57 Fla. 519, 49 So. 1023), we held that 'where a loan of money is made, and the amount received as interest is more than 10 per cent. per annum upon 'the actual principal sum received' by the debtor, it is usury, even though the excess is caused solely by the reservation in advance of the interest.' We also referred to sections 3105 and 3106 of the General Statutes of 1906 and would now refer to sections 3103, 3104, and 3107, which together with the two sections previously cited set forth the statute law in force in this state at the time this action was brought relating to interest and usurious contracts. These sections, or some of them, have been amended by chapter 5960 of the Laws of Florida, found on page 158 of the Acts of 1909, but we are not now concerned with the changes made by this chapter. We found that, although the note executed by the debtor was for $700, to secure the payment of which the mortgage was given, the foreclosure of which is sought, yet that the actual sum received by the debtor was only $682.50; the creditor having withheld $17.50 as the first quarter's interest on the loan. For the reasons which we set forth in the opinion, we held that such contract was usurious, and that 'because of the violation of the statute the plaintiff was entitled to recover 'only the actual principal sum' received by the defendant's intestate.' As we also said, section 3106 of the General Statutes expressly provides that 'only the actual principal sum of such usurious contracts can be enforced either at law or in equity.'
We further held that 'usury in a loan will not prevent the recovery ofreasonable attorney's fees provided for, where foreclosure is necessary to enforce the payment of the principal sum of the loan,' adding that 'the courts should exercise care and caution in decreeing attorney's fees, to the end that only reasonable fees for service rendered be allowed.' All of these adjudicated points have now become the law of the case.
After the cause was remanded, the defendants, by leave of the court, filed a plea...
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Ferdon v. Zarriello Bros. Inc.
...Credit Corp., 280 F.2d 895, 901 (5 Cir. 1960), certiorari denied, 364 U.S. 911, 81 S.Ct. 274, 5 L.Ed.2d 225 (1960); Purvis v. Frink, 61 Fla. 712, 54 So. 862 (Sup.Ct.1911); Driver v. Tolstornog, 358 P.2d 1108 Plaintiffs' motion for summary judgment is denied. ...
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