Security State Bank v. Lane
| Decision Date | 29 May 1917 |
| Docket Number | 6607. |
| Parties | SECURITY STATE BANK v. LANE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a copy of the written demand required by section 1005, Rev Laws 1910, is attached to and made a part of the petition of the plaintiff in an action to recover the penalty provided for by said section, and is not stricken out on motion, it will be considered a part of the petition and admissible in evidence under the rule governing exhibits attached to and made a part of the pleading.
Where the original paper is necessarily in the hands of the defendant, notice to produce the same is not required to allow a copy to be given in evidence where the form of the action and the allegations of the pleadings are such as to give notice that the production will be necessary at the trial.
Where the plaintiff in an action to recover the penalty prescribed by section 1005, Rev. Laws 1910, prevails, he is entitled by section 1006, Rev. Laws 1910, to recover as part of his costs a judgment against the other party to such action for a reasonable attorney's fee, to be fixed by the court, but said section does not authorize the trial court to render judgment against the defendant for an additional sum as an attorney's fee in the event the cause is appealed to the Supreme Court.
Error from Superior Court, Pottawatomie County; George C Abernathy, Judge.
Action by R. L. Lane against the Security State Bank. There was judgment for plaintiff, and defendant brings error. Modified and affirmed.
F. H Reily, of Oklahoma City, for plaintiff in error.
Baldwin & Carlton, of Shawnee, for defendant in error.
Erwin & Erwin, of Wellston, amici curiæ.
This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the recovery of twice the amount of certain payments of interest made by the plaintiff to the defendant which were alleged to be usurious. Upon trial to a jury there was a verdict in favor of the plaintiff in the sum of $179.40, upon which judgment was duly entered. Thereafter the court proceeded to take testimony as to the reasonableness of attorney's fees to be taxed as costs in favor of the plaintiff, and after hearing same entered judgment in the sum of $50 for attorney's fees for plaintiff for services rendered in the trial court, and in case an appeal is taken a further sum of $50 to be added as costs as attorney's fees for services in the Supreme Court.
The grounds for reversal, upon which counsel for defendant relies, as we find them in his brief, may be summarized as follows: (1) The court erred in overruling the objections of the defendant to the introduction of any evidence on the following ground: First, because the petition or any count or part thereof did not state a cause of action; second, because no legal demand was made as shown by the exhibit attached to the petition. (2) The court erred in permitting the plaintiff to introduce in evidence the alleged copy of its demand. (3) The court erred in rendering judgment against the defendant for the sum of $50 attorney's fees for the trial in the superior court, and the further sum of $50 to be ordered as costs for attorney's fees in case of an appeal to the Supreme Court. The statute (section 1005, Rev. Laws 1910) provides:
"The party bringing such suit must make written demand for return of such usury."
In the case at bar the plaintiff, after making a detailed statement of the various sums paid as interest, demanded a return of "all interest above 10 per cent. per annum so paid by me as shown by said statement." This, of course, was a much smaller sum than the plaintiff was entitled to, if he established his cause of action, but it does not seem to us that this alone would justify the defendant in refusing to pay anything. The demand certainly was sufficient to notify the lender that the borrower intended to claim the benefits given him by the statute, and this by a recent decision...
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