Schuyler National Bank v. Tollong

At law. Action in the district court of Colfax county, Neb., by Hector C. Bollong against the Schuyler National Bank to recover back usurious interest exacted by defendant. Judgment was given for plaintiff, but reversed by the state supreme court. 40 N. W. Rep. 411. Upon a new trial plaintiff again had judgment, which the supreme court of the state affirmed. 48 N. W. Rep. 826. Defendant brings error. Dismissed.

This was an action brought by Hector C. Bollong against the Schuyler National Bank, a corporation located and doing business in Colfax county, Neb., in the district court of that county, to recover the penalties imposed by the statutes of the United States for knowingly contracting for and receiving usurious interest. The original petition or complaint was filed Mrach 19, 1887, and judgment recovered thereon was reversed by the state supreme court, and the cause remanded, (Bank v. Bollong, 24 Neb. 821, 40 N. W. Rep. 411,) whereupon, on January 11, 1889. Bollong filed by leave of court his amended petition, containing 31 counts. The defendant submitted several preliminary motions, which were overruled, and exception taken, and among then one to dismiss the action upon the grounds:

'First. That this court has no jurisdiction to try and determine the subject-matter of the above-entitled action.

'Second. That exclusive jurisdiction is by the laws of the United States, to wit, section 711 of the Revised Statutes of the United States, vested in the courts of the United States to try and determine the subject-matter of the above-entitled action.'

The motions having been disposed of, the defendant answered, denying all the material allegations of the petition, and pleading in addition the limitation of two years provided by congress for actions of his character. Issues being joined, a jury was waived, and the cause was submitted to the court for trial. The defendant objected 'to the introduction of any evidence under this petition on the ground that it does not state grounds sufficient to constitute a cause of action,' and, the objection being overruled, excepted.

The court made findings of fact and conclusions of law to which the defendant filed exceptions, and also a motion for new trial, which were severally overruled, and exception taken. Judgment was thereupon rendered against the bank for $1,601.84 and costs.

The fifth ground assigned for a new trial was: 'That the court erred in admitting any evidence to sustain the allegations of the amended petition, for that the said petition states no facts sufficient to constitute a cause of action.'

The bank then brought its petition in error in the state supreme court, setting forth, among other grounds, the following: 'Eighteenth. That the findings and decision of the court herein are contrary to law. Nineteenth. That the court erred in finding that the allegations of the said amended petition are sustained by sufficient evidence. Twentieth. That the court erred in overruling the motion for a new trial made by the plaintiff in error.'

The supreme court held that the state courts had jurisdiction in this class of cases; that the questions of law involved had been decided in Bank v. Bollong, 24 Neb. 821, 825, 40 N. W. Rep. 411, 413; that the findings of facts were amply sustained by the evidence; and affirmed the judgment. The opinion will be found in 32 Neb. 70, 48 N. W. Rep. 826. The case having been brought to this court by writ of error, the following errors were assigned in the brief of counsel, and argued at the bar:

'(1) The complaint of the plaintiff below is fatally defective in that it contains no averment negativing the exception of section 5197, Rev. St. U.S., viz.: 'Except that where by the laws of any state a different rate is limited for banks of issue organized under state laws, the rate so limited shall be allowed for associations organized or existing in any such state under this title.' (2) The complaint of the plaintiff below contains no allegation of the rate of interest allowed in any case by the laws of the state of Nebraska. Without such allegation, the averment that the interest charged by the defendant below 'was at a rate of interest greater than is allowed by the laws of the state of Nebraska' is wholly insufficient to support this action under said section 5197.

'(3) That the supposed causes of action are alleged to have accured to the plaintiff below by force of section 5198 of the Revised Statutes of the United States, whereas the same accrued, if at all, under and by force of sections 5197 and 5198 of the Revised Statutes, and not by force alone of section 5198, as alleged.

'(4) That there is a fatal variance between the allegations of the complaint of the plaintiff below and the requirements of the said sections of the Revised Statutes.

'(5) That there is no allegation in either of the counts or causes of action to the petition that the indebtedness of the plaintiff below to the bank, as therein specified, has been paid; and, for aught alleged, the several transactions complained of are still in fieri.

'(6) That there are other manifest and fatal errors appearing on the face of the petition of the plaintiff below that will be specified in the argument.'

Wm. Twombly and J. G. Bigelow, for plaintiff in error.

C. J. Phelps and Clifton O. Sabin, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.