Talbot v. Sioux Nat. Bank of Sioux City

• Decision Date: 22 May 1900
• Citation: 111 Iowa 583,82 N.W. 963
• Parties: TALBOT v. SIOUX NAT. BANK OF SIOUX CITY.
• Court: Iowa Supreme Court

111 Iowa 583

82 N.W. 963

TALBOT

v.SIOUX NAT. BANK OF SIOUX CITY.

Supreme Court of Iowa.

May 22, 1900.

Appeal from district court, Woodbury county; George W. Wakefield, Judge.

Action to recover usury, under section 5198 of the Revised Statutes of the United States. A demurrer to the petition was sustained. Plaintiff appeals. Affirmed.D. H. Talbot, in pro. per.

J. S. Lothrop, for appellee.

SHERWIN, J.

In his petition the plaintiff avers that he commenced doing business with the defendant bank about May 27, 1889, and that on the 24th day of February, 1890, he gave the defendant one $10,000 note, in which was included usurious interest which the bank had charged the plaintiff; that on the 4th day of March, 1890, the plaintiff executed and delivered to the defendant his note for $28,000; that said note was given to cover borrowed money, the $10,000 note of February 24, 1890, and illegal interest and charges which the bank had before made against the plaintiff. The defendant demurred to the two counts of the petition alleging the cause of action herein stated. Several grounds were stated in the demurrer,--among others, that the statute of limitations had run against the plaintiff's claim. The demurrer was sustained generally, and, the plaintiff electing to stand on his pleadings, the cause, as to the claim made in counts 1 and 2 of the petition, was dismissed. The $28,000 note was never paid by the plaintiff. A land mortgage was given to secure it, and that was foreclosed in Plymouth county, Iowa, and a decree rendered against the plaintiff thereon May 6, 1891. The land covered by this mortgage was sold some time thereafter,--just when, does not certainly appear, but it was more than two years prior to the commencement of this action. Section 5198 of the Revised Statutes of the United States provides for the recovery back of twice the amount of unlawful interest paid, if the action therefor be commenced within two years from the time the usurious transaction occurred. This action was begun October 7, 1896, and at that time the plaintiff's cause of action was barred, and the demurrer for that reason was properly sustained. There was no error in striking a part of the prayer from the third count of the petition. The judgment is affirmed.

LADD, J., took no part.