Thorne v. Milliken
| Decision Date | 16 May 1916 |
| Docket Number | 6623. |
| Citation | 157 P. 914,57 Okla. 735,1916 OK 556 |
| Parties | THORNE v. MILLIKEN ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The payment of usury and the making of a demand for its return as provided by section 1005, Rev. Laws 1910, creates the right of action for its recovery and an action to recover such usury and penalty may be maintained in the county in which the payment was made.
Where a petition for the recovery of usury and the penalty therefor points out where the action accrued, a demurrer to such petition upon the ground that the defendants resided and were served with summons in a county other than the one in which such action was brought and that consequently the court in which such action was brought was without jurisdiction should be overruled.
A demurrer to the evidence should not be sustained when there is evidence upon which the jury can reasonably predicate a verdict.
The court, and not the jury, must fix the attorney's fee to be awarded the prevailing party in an action to recover usury, and it is the proper practice, after the rendition of the verdict, for the court to sustain a motion to hear evidence as to the value of such attorney's fee and fix the amount of same, for the use and benefit of the attorney of record of the prevailing party, as a part of the costs of the action.
Commissioners' Opinion, Division No. 1. Error from County Court, Jackson County; J. M. Williams, Judge.
Action by J. H. Milliken and another against E. C. Thorne. Judgment for plaintiffs, and defendant brings error. Affirmed.
Robinson & Hamilton, of Altus, for plaintiff in error.
W. T McConnell, of Oklahoma City, for defendants in error.
This is an action brought by the defendants in error against the plaintiff in error to recover usurious interest paid.
Hereinafter the parties will be designated as they were in the trial court.
The first paragraph of the petition in this case alleges and states:
And in the other parts said petition amplifies and explains how said cause of action arose within Jackson county. The defendants appeared specially and demurred to the petition, which demurrer, omitting its caption, is as follows:
"That it is shown by the plaintiff's petition this is an action brought for the recovery of usurious interest, and therefore said action should be brought in the county in which the defendant resides or may be summonsed, and, as set forth in plaintiff's petition, the defendant is a resident of Oklahoma county and therefore, as shown upon the face of plaintiff's petition, the court has no jurisdiction of the person of the defendant, and of this the defendant prays the court."
Which demurrer was overruled by the court, and duly excepted to. Thereafter the defendants filed an answer denying each and every material allegation in plaintiff's petition.
Plaintiff in error has failed in his brief to abstract the testimony, but states that:
"Milliken testified to having paid certain notes, copies of which were attached to plaintiff's petition as exhibits, but nowhere in his testimony does he state the amount he paid the defendant."
Upon the conclusion of the evidence of plaintiff, the defendants demurred to plaintiff's evidence, which demurrer was overruled and duly excepted to.
The brief does not disclose that any evidence was offered on the part of the defendant. Upon the conclusion of the evidence, the plaintiff requested the court to instruct the jury to return a verdict for the plaintiff in the sum of $468.75, together with costs, which the court declined to do, to which the plaintiff duly excepted, and thereupon the court, on its own motion, instructed the jury to return a verdict for the plaintiff in the sum of $252.50, to which the defendants duly excepted. The defendants timely filed a motion for new trial, which was overruled and duly excepted to.
At a subsequent time at the same term of the court the plaintiff filed a motion to retax the costs in the case, and to tax and assess as a part of the costs in this action the sum of $50 for the use and benefit of their attorney, McConnell, which they alleged was a reasonable attorney's fee in this action, which motion coming on to be heard, evidence was introduced as to the value of said attorney's fee, and the court retaxed the costs fixing such attorney's fee in the sum of $50, to which the defendant duly excepted.
The errors assigned are: (1) Overruling defendants' demurrer to the plaintiff's petition; (2) overruling defendants' demurrer to the plaintiff's evidence; (3) directing the jury to return a verdict for plaintiff in the sum of $252.50; (4) taxing as a part of the costs in the case the sum of $50 as attorney's fee; (5) overruling motion for a new trial.
This being an action for the recovery of a statutory penalty must be brought in the county where the cause of action or some part thereof arose. Section 4673, R. L. 1910.
It is true that it is provided by section 1005 that the action to recover for usurious interest paid and the penalty provided is an action in the nature of debt, but this provision of the statute has no reference to the venue of such action, and cannot be regarded as in conflict with section 4673, which provides that to recover a statutory penalty the action must be brought in the county where the cause of action or some part thereof arose. In an action to recover a statutory penalty, it is where the act which violated the statute was done. 40 Cyc. p. 83.
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