Sheimo v. Norqual

• Decision Date: 02 July 1915
• Citation: 31 N.D. 343,153 N.W. 470
• Parties: SHEIMO v. NORQUAL et al.
• Court: North Dakota Supreme Court

31 N.D. 343

153 N.W. 470

SHEIMO

v.NORQUAL et al.

Supreme Court of North Dakota.

June 14, 1915.

Rehearing Denied July 2, 1915.

Syllabus by the Court.

Plaintiff sued upon a $110 note. Defendant answered, alleging usury. Plaintiff thereupon served amended complaint, alleging that said note should be for $100, but through mutual mistake was made to read $110. Defendant filed amended answer to said amended complaint, generally denying the allegations thereof. No objection was made to the condition of the pleadings at the time of the trial, and during the course thereof the trial court informed the attorney for plaintiff that defendant could rely upon both of the answers filed. At the close of all the testimony plaintiff moved for a directed verdict, for the reason that the defense of usury was not properly pleaded. Trial court stated that he was not prepared to rule at that time. Before the ruling, application was made by defendant to file an amended answer incorporating the plea of usury, if the same were not already contained in his pleadings. This motion was allowed, and the plaintiff was offered all the additional time he needed to prepare for trial upon the new answer, which was refused by him, and a demurrer to the amended complaint interposed. This was overruled, and the jury found for the defendant.

The court erred in holding that the original pleadings were in effect at the trial, but the same is cured.

It was not error to allow the amendment to the answer to be filed under the circumstances of this case, as plaintiff was allowed sufficient time within which to meet the issues if any change were made therein, and the plaintiff was therefore in no manner prejudiced.

Appeal from the Benson County Court; Liles, Judge.

Action by A. M. Sheimo against Nels Norqual and another. Decision for defendants, and plaintiff appeals. Affirmed.J. E. Skulstad, of Maddock, for appellant. T. H. Burke, of Minnewaukan, and E. J. McIlraith, of Fordville, for respondents.

BURKE, J.

The plaintiff served his complaint in county court, alleging that the defendants executed and delivered to him their promissory note in the sum of $110, with interest at the rate of 12 per cent. after date. For answer defendants admit the execution and delivery of their note for $110, but allege that the note was given to secure the sum of $100 borrowed by defendant, and the charging of interest on the said sum of $110 is usurious, and that the said charging of the said rate of interest on said note was knowingly done by plaintiff. Defendants admit that they are indebted to plaintiff in the sum of $92. After the service of this answer an amended complaint was served, wherein it was alleged that it was the intention of the parties to said note that the note should be for $100, and by mutual error it read $110, instead of $100. The defendants thereupon filed an amended answer to said amended complaint, which was in effect a general denial. When the case was reached for trial, no objection of any kind was made to the condition of the pleadings, and plaintiff was called as a witness to substantiate his theory of the execution of the note. Upon cross-examination, and in refutation of his theory thereof, some reference was made to a bonus. Plaintiff's counsel took exception to this, claiming that usury was not pleaded as a defense. The court thereupon called his attention to paragraph 4 of the original answer, and informed counsel that the case would be tried upon that pleading as supplemented by the amended answer. At the close of all of the testimony plaintiff moved for a directed verdict upon the grounds that the only defense interposed, that of usury, was not pleaded in the amended answer. The court stated that he was not prepared to rule at that time, and an adjournment was taken until the next morning. Upon convening, defendant's attorney stated that he still believed the original answer stood, but, if the court held otherwise he would move for leave to file an amended answer. This was allowed, and both the original answer and the amended answer were consolidated into one pleading, whereupon the court denied the motion for a directed verdict. Thereupon plaintiff's attorney moved the court for a certain time within which to answer, if an answer in his judgment should be made, or to file a demurrer. Whereupon the following proceedings were had:

“The Court: You can ask the court to have the case reopened. How long would it take you to determine?

Mr. Skulstad: If it please the court, I want to demur to this answer.

The Court: What is going to be the ground of your demurrer? You know the statutory grounds for demurrer. Which are you going to urge?

Mr. Skulstad: For the reason that the same fails to set out an action or a defense to the complaint herein.

The Court: You may prepare your demurrer, and the demurrer will be denied. You can file it, and put it in the record, and I will deny it without argument. You may prepare the demurrer subsequently, and file it, so as to complete the record.”

The case was submitted to the jury, who found for the defendant. Plaintiff appeals, alleging two groups of errors:

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