Tomblin v. Higgins
| Decision Date | 21 December 1897 |
| Docket Number | 7629 |
| Citation | 73 N.W. 461,53 Neb. 92 |
| Parties | J. W. TOMBLIN v. JONATHAN HIGGINS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Furnas county. Tried below before WELTY, J. Affirmed.
AFFIRMED.
W. S Morlan, for plaintiff in error.
J. H Broady, contra.
This cause was commenced in the county court of Furnas county where the plaintiff in error sued to recover from the defendant in error as maker of a promissory note for $ 500 bearing date of March 14, 1891, and payable March 14, 1892, with interest from date, to the order of "J. W. Tomblin, Pt." A trial upon issue joined resulted in a judgment for the defendant, from which an appeal was prosecuted to the district court, where, to the petition in the usual form in like actions, an answer was interposed in which it was alleged that the First National Bank of Arapahoe was the real party in interest, and that in the execution and delivery of the note in suit, as well as in the several antecedent transactions furnishing the pretended consideration therefor, the plaintiff acted as the trustee for said bank. Said allegation was accompanied by a statement in detail of the transactions between the defendant and the bank, resulting in the execution of this note, which are in brief the loaning by the latter to the former of a large sum of money at a usurious rate of interest, the renewal from time to time of the notes given therefor at a usurious rate of interest, and the payment upon said notes and renewals thereof of a sum largely exceeding the money loaned. It was further expressly charged that the note in suit was given for usurious interest which had accrued on the original loan and renewal notes given therefor, and for no other or different consideration whatever. The plaintiff replied, (1) denying the allegations of the answer except such as were therein confessed; (2) alleging that the note in suit was given for a part of the balance found to be due from defendant upon final settlement previously had of all matters of difference between the parties. A trial was had of the issues thus presented in the month of October, 1893, resulting in a verdict for the plaintiff, which was, however, set aside on motion of the defendant. Subsequently the plaintiff, by leave of court, filed an amended petition alleging the execution of the note to him as agent and president of the bank above named and in its behalf. To this petition the defendant answered, (1) admitting the execution of the note, and, in effect, denying the other allegations...
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