Green v. Frank

63 Ga. 78

• Court: Supreme Court of Georgia
• Decided: February 15, 1879
• Status: Published

Opinion

Bleckley, Justice.

1. Both loans were usurious, and the second was on foot before anything had been paid, or even become due, on the first. The first was paid off in full not earlier than February 9th, 1867, and the suits now in question were commenced on March 1, 1870, which was less than four years after that payment. The time for pleading to these suits was thus necessarily within the statutory period (as the law then stood) within which an action might have been brought to recover back the usury paid upon the first loan. 'The record here is fragmentary, and several consents of counsel are in it which seem intended to dispense with completeness. For some reason, the pleas were not brought up; and when they were filed does not appear. Every reasonable presumption going to uphold the.correctness of the judgment below is to be made, and there is no strain in presuming that the missing pleas were filed when they ought to have been filed, that is, at the time appointed by summons for the defendant to answer. Certainly the record does not affirmatively show that they came in after a set-off' for the paid usury would have been barred by the statute.

It is apparent that the so-called accord and satisfaction amounts to nothing. There was no complete purging of usury out of the second loan, and if any was attempted, there is no explanation of why it failed, and it did fail signally. The debtor was left in vmoulis, and the taint was left in the debt. And just look at what the creditor gave by way of consideration for the release. He had an action pending in Virginia for the recovery of this identical usurious debt, with a summons of garnishment which locked up some of the debtor’s money to satisfy any recovery which might be had in that action. He let go this hold which he had in Virginia, dismissed his suit there, and. reduced his debt, not to principal and legal interest, but to less than what it amounted to at the full usurious rate, and took new notes, retaining his mortgage security upon the-debtor’s property just as it was. The debtor, under pressure, says, “ Stop your Virginia process for collecting the debt and all the usury, and I will pay you hereafter the debt and a part of the usury, and release to yon now the. whole of the usury which I have paid on the prior loan.” The bargain was concluded on this basis. To enforce it as a conclusive adjustment by way of accord and satisfaction, would be to settle the principle that the usurer has but to sue twice; compromise the first action by taking a new note, remitting a part of the usury, and then bring his second action and proceed triumphantly to judgment.

2. No time is fixed by statute or by general rules of, court for filing the auditor’s report. Where the court omits to appoint some time by special order, the report is not too late, so that it gets in before the trial. Of course, it is desirable to have it early enough to afford full opportunity to except and to prepare, on both sides, for a trial of the exceptions. But a continuance for this purpose, where necessary, may be granted, and if needed should be applied for. .

3. There is no statutory provision for cutting up costs in a case at law as may be done in equity. It would seem that the auditor’s fees are costs, and as such, are to be paid by the party cast. But it is obvious that a mistake in this regard is no cause for a new trial. Why should the case itself be tried over because the court has erred in framing the proper judgment on the verdict? Surely the verdict is not vitiated by what is and must be subsequent to it in the order of proceedings. The point as to this action of the court is not otherwise made than as one of the grounds of the motion for a new trial, and the only error assigned in the bill of exceptions is upon overruling that motion. There was no error in refusing a new trial.

Judgment affirmed.