Siebers v. Finance Corporation

Me. Justice Holland delivered the opinion of the court. *41 Dependant in error obtained a judgment for $148.93 in tbe district court against plaintiffs in error on a promissory note. Herein reference will be made to tbe parties as they appeared at tbe trial, as plaintiff and defendants. The note was executed by all of tbe defendants, five in number, and was secured by an investment certificate of plaintiff issued to Hugo R. Siebers, it thereby appearing tbat Siebers was in reality the principal maker, tbe note being dated December 7, 1933, and calling for tbe payment of $168 one year after date. Tbe evidence discloses tbat tbe maker received $158 at tbe time of tbe transaction and tbat $42 was paid by him upon tbe note and tbe certificate. Tbe note bore no interest until maturity, but tbe investment certificate required payment of $8.40 semimonthly for ten months and upon full payment of tbe certificate tbe interest upon tbe borrowed money was to be calculated at the rate of eleven per cent per annum upon unpaid balances. March 30,1935, plaintiff instituted this action to recover judgment for the balance of $126 together with interest and attorney’s fees. The complaint is in usual form, setting out tbe promissory note and investment certificate in full. Defendants answered, admitting tbe execution and delivery of tbe note and receipt of tbe certificate, but denying tbe other allegations of tbe complaint. By further defenses, they admit tbe receipt by Hugo R. Siebers of $150 at tbe time of tbe execution of the note and allege payments on tbe note and investment certificate in tbe sum of $42.75 made in installments from December 7, 1933, to March 2,1934. By way of a second defense they allege tbat tbe loan was void under tbe 1913 Money Lender’s Act; in a third defense tbat it was void under tbe 1917 Loan Shark Act, and a fourth defense alleges tbat tbe interest charged and received was unconscionable, excessive and unreasonably oppressive. General and special demurrers were filed and sustained to tbe second, third and fourth defenses, tbe order of court made at tbe time being as follows: “And thereupon, this cause coming on to be heard upon tbe *42 plaintiff’s demurrer (general and special) to the 2nd, 3rd, and 4th defenses in defendants’ answer, the same is argued by counsel, and the court being now sufficiently advised in the premises, doth sustain said demurrer. “And, thereupon, it is ordered by the court that the said defendants may have time and until ten (10) days from this day within which to elect their future course herein.” The abstract of the record filed herein, contains the following: “On October 2, 3935, the demurrers were sustained and thereafter trial had on the first defense only, the defendants electing to stand on the pleadings as determined by the demurrer as to the second, third and fourth defenses.” Trial proceeded on the issues formed by the complaint and first defense and judgment entered thereon. The record is silent as to any election on the part of defendants to stand on the pleadings as made by the order sustaining the demurrer, also as to any motion by defendants for the entry of final judgment of dismissal as to the second, third and fourth defenses entered. The only error now urged by them is that of the trial court in sustaining the demurrers. If they desired to have the alleged error based upon this ruling, reviewed by this court, it was incumbent upon them to see that final judgment was entered. Martin v. Way, 86 Colo. 232, 280 Pac. 488; Crews-Beggs D. G. Co. v. Bayle, 96 Colo. 19, 40 P. (2d) 233. There being no such final judgment before us upon which this error could be predicated, or the writ prosecuted, the defenses referred to having been thus abandoned, the writ of error herein is dismissed and the judgment affirmed. Mr. Chiee Justice Burke and Mr. Justice Iynous concur.