Snyder v. Crutcher

• Decision Date: 23 February 1909
• Citation: 137 Mo. App. 121,118 S.W. 489
• Parties: SNYDER v. CRUTCHER et al.
• Court: Missouri Court of Appeals

118 S.W. 489

137 Mo. App. 121

SNYDER v. CRUTCHER et al.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

Rehearing Denied April 20, 1909.

1. REFERENCE (§ 8)—COMPULSORY REFERENCE —WHEN AUTHORIZED.

An action for money paid out in violation of the usury law and for attorney's fees awarded by the act of 1905 (Laws 1905, p. 172; Ann. St. 1906, § 3708), as an additional penalty for exacting usury, though involving numerous payments and their application on account of interest, does not involve a long account within the statute relating to reference, and the court cannot direct a compulsory reference.

2. JUSTICES OF THE PEACE (§ 141)—JURISDICTION OF COURT ON APPEAL.

A controversy beyond the jurisdiction of a justice of the peace is beyond the jurisdiction of the circuit court on appeal to it from the justice's court.

3. JUSTICES OF THE PEACE (§ 47)—JURISDICTION.

Since the cancellation of instruments and an order for their surrender is peculiarly within the jurisdiction of equity, a justice of the peace has no jurisdiction of a suit for the cancellation of notes and for an order for their surrender.

4. USURY (§ 110)—FORFEITURES—PENALTIES —PERSONS LIABLE.

A person who loaned the money, who received all the interest paid, and who owns the notes given for the loan, is the only necessary or proper party in an action at law to recover usurious interest with the penalty imposed by the act of 1905 (Laws 1905, p. 172; Ann. St. 1906, § 3708), and a third person to whom the notes were made payable is not a proper or necessary party.

5. APPEAL AND ERROR (§ 266)—QUESTIONS REVIEWABLE.

One who has neither appealed nor saved exceptions to the refusal of the court to disregard exceptions to the report of the referee cannot urge in the appellate court that the trial court erred in failing to disregard the exceptions to the report.

6. APPEAL AND ERROR (§ 1044)—REVIEW— PREJUDICIAL ERROR—COMPULSORY REFERENCE.

The error of the court in directing a compulsory reference, and thereby depriving a party of his right to trial by jury, is reversible.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by C. L. Snyder against L. F. and L. A. Crutcher. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

This action was originally commenced before a justice of the peace in Greene county. The statement filed with the justice set out, in substance: That plaintiff, borrowing from the defendant L. F. Crutcher various sums of money, evidenced by various notes, had been charged and had paid by way of interest various amounts, which he claims were usurious; that plaintiff had given to the other defendant, L. A. Crutcher, a note for substantially the same debt, the exchange or substitution of one note for the other being made, as it is alleged, by L. F. Crutcher, who was the father of L. A. Crutcher, to avoid the statute against usury, adopted in 1905; that the note last referred to was without consideration other than that attached to the note given to L. F. Crutcher; that L. F Crutcher was the real owner and holder thereof; and that plaintiff had made all payments on the notes to L. F. Crutcher. Plaintiff demanded judgment against the defendant L. F. Crutcher for the amount paid him over and above lawful interest, which plaintiff avers was $66.35, and plaintiff demanded that, if L. F. Crutcher has the note, he produce the same in court before the justice for cancellation, or, if the defendant L. A. Crutcher has the note, then that he be ordered to produce it before the justice, and that the justice order that the same be canceled. There is the further demand that $50 be taxed as costs in this suit as a reasonable attorney's fee in favor of the plaintiff against both defendants. It appears that at the trial before the justice, the defendants answered as follows: "Come now the defendants and say they did not owe the plaintiff any sum whatever. But for counterclaim against the plaintiff says he is indebted to L. F. Crutcher in the sum of $38.50, with 8 per cent. interest from January 9, 1905, as shown by his promissory note of said date, for which amount he prays judgment."

The justice appears to have rendered a judgment in favor of plaintiff for the sum of $66.75 as debt and $50 as attorney's fee and costs of suit. It does not clearly appear whether the judgment for the debt was against one or both of the defendants. An appeal was duly prosecuted by the defendants to the Greene county circuit court, where, on February ___, 1907, plaintiff filed an amended petition, in which he took up this matter of the $38.50 note, set up by L. F. Crutcher as a counterclaim before the justice, and averred that it was given for $35 actually borrowed, and that it had been surrendered and merged into a note for $82.50, this latter note representing the $35 which it was claimed had been borrowed and for which the $38.50 note had been given and also interest in advance added, as well as for $40 additional money then borrowed, and that the note for $38.50 had been canceled and paid by the giving of this note, but that the plaintiff forgot to take up the $38.50 note. The remainder of this amended statement is practically the same as that filed with the justice; it being claimed, however, that the overpayment was $63.20, for which he prayed judgment, and the plaintiff again stating that all his transactions were with L. F. Crutcher, although the name of L. A. Crutcher was used. And it is then averred, in effect, as before, that one or other of the defendants have the $82.50 note, and plaintiff prayed the court to require either or both of them to produce the note for cancellation, and $50 attorney's fee is demanded under the statute Acts 1905, p. 172. On February 11th the defendants moved to strike out this amended petition because it changed the cause of action and set up different causes than that before the justice, which motion was overruled, and defendants, on the 21st of February, 1907, filed an answer to the amended petition, in which answer they deny owing any sum whatever to plaintiff, while L. F. Crutcher sets up, as a counterclaim in his favor, the $38.50 note above referred to, and the defendant L. A. Crutcher sets up a counterclaim on a note for $20, which he claims was given to him by plaintiff on the 1st of September, 1905. Plaintiff thereupon, on May 13, 1907, filed a second amended petition, in which he takes up the matter of the $38.50 note and avers that he had only borrowed $35 on it, and also takes up the execution of the $82.50 note substantially as stated before, and then takes up the matter of the $20 note, which he avers was for money borrowed of L. F. Crutcher, although the note appears to be in the name of L. A. Crutcher. This petition again pleads usury and prays judgment against the defendants for the cancellation and surrender of the notes and for an attorney's fee of $50, as in each of the other statements or petitions. On the same day, that is, May 13, 1907, defendants filed their answer to this second amended petition, in which they deny that they owe plaintiff anything whatever, while L. F. Crutcher sets up the $38.50 note as a counterclaim, and L. A. Crutcher sets up the $20 note as a counterclaim.

On May 14, 1907, plaintiff filed his second amended petition, which is as follows: "Now comes the plaintiff in the above-entitled cause, and for amended petition states: That on January 9, 1905, plaintiff borrowed of defendant L. F. Crutcher the sum of $35, executing therefor a blank note, specifying no amount, as was required by said defendant, and also executing to said defendant an assignment of future wages with power of attorney to collect the same for a period of three years, from the Frisco Railroad Company, plaintiff's employer. That said assignment was required of plaintiff by said defendant L. F. Crutcher to secure said loan. That said assignment and said note was executed by plaintiff as aforesaid, and mailed to defendant L. F. Crutcher at Springfield, Mo., from Willow Springs, Mo., where plaintiff was at that time employed as yardmaster. That thereafter, without plaintiff's knowledge, defendant filled in said note for the sum of $38.50, as it now appears. That the plaintiff received the $35 in the shape of a bank draft, mailed to him by said defendant, together with a letter of transmittal, and notifying plaintiff that 10 per cent. interest would be due on January 21st following. Said letter of transmittal was dated January 10, 1905. That on January 27, 1905, plaintiff borrowed the further sum of $40 of defendant L. F. Crutcher, and signed and delivered to him a note for $82.50, which defendant L. F. Crutcher, explained as follows: For the $35 loaned January 9th, and for the $40 then furnished, and 10 per cent. advance interest $7.50; a total of $82.50. Plaintiff signed said note at the demand of defendant L F. Crutcher, who produced the first note, declaring it canceled and paid by the giving of the said second note. That although paid in this way, plaintiff forgot to take away said first note, but left it lying on defendant's table. That said note has been fraudulently retained by said plaintiff (defendant?), who, well knowing the same to be fully paid, seeks to make it a counterclaim herein. That plaintiff thereafter returned to Willow Springs to his employment there, and upon demands of plaintiff (defendant?) paid, through his agent, to defendant L. F. Crutcher as follows: On or about February 23, 1905,...