Turner v. Interstate Building & Loan Ass'n

• Decision Date: 20 October 1897
• Citation: 27 S.E. 947,51 S.C. 33
• Parties: TURNER et al. v. INTERSTATE BUILDING & LOAN ASS'N.
• Court: South Carolina Supreme Court

27 S.E. 947

51 S.C. 33

TURNER et al. v. INTERSTATE BUILDING & LOAN ASS'N.

Supreme Court of South Carolina

October 20, 1897

Appeal from common pleas circuit court of Edgefield county; O. W Buchanan, Judge.

Action by Wiley H. Turner and another against the Interstate Building & Loan Association. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Sheppard Bros., for appellant.

Croft & Tillman, for respondents.

JONES J.

This is a suit under section 1391 of the Revised Statutes for double the sum alleged to have been received as usurious interest. The case is one at law, and, by consent, the questions of fact were tried by the judge. This appeal is from a judgment against the defendant for $880.82, with interest from March 15, 1895, amounting at the date of the judgment to $988.70.

1. There was no error in overruling the demurrer that the complaint did not state facts sufficient to constitute a cause of action. This question was ruled against appellant by this court in the former appeal in this case. 47 S.C. 397, 25 S.E. 281. While a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action may be taken at any stage of the trial in the circuit court, yet, when once taken and lost on certain specifications showing wherein the complaint is defective, it cannot be renewed at any subsequent trial on the same or other specifications. This ground of demurrer is single, and all specifications thereunder not made when heard are deemed waived.

2. The special facts found by the circuit judge in this case do not distinguish it at all from the case of Association v Hoffman, 50 S.C. 303, 27 S.E. 692, following Association v. Vance, 49 S.C. 407, 27 S.E. 274 wherein a similar contract was adjudged to be enforceable according to the law of Georgia, which provides "that no fines, interest or premiums paid on loans in any building and loan association shall be deemed usurious." The fact that the Georgia statute was adopted October 19, 1891, and the bond securing the monthly stock dues and interest was dated May 15, 1890, does not render the Georgia statute inapplicable, since all the payments by the plaintiff were made after November 12, 1892. Construing the contract, as it should be construed, according to the law of Georgia, no usury was received by the defendant; and hence our statute allowing a suit for double the sum received as usurious...