Rushing v. Willingham

Lewis, J. 1. Plaintiff assigns error in the bill of exceptions in overruling his motion to dismiss the attachment. It does not appear that exceptions pendente lite were taken on this ruling -of the court. It appears from the record that this writ of error was sued out some two months or longer after the judgment of the court complained of; and while the bill of exceptions states "that error thereon was assigned within the time allowed by law, ■yet in case the record shows the contrary, the latter will control. Dismuke v. Trammell, 64 Ga. 428. 2. A number of grounds are taken in the motion for a new trial, alleging error in admitting certain testimony, but the record fails to disclose that the party complaining made any objection at the time such testimony was admitted. Under repeated [170] rulings of this court, we can not consider such grounds in the motion for a new trial. Error is assigned in refusing to admit the answer of B. IT. Bay to a certain interrogatory, on the ground that there was higher evidence of the fact testified to.. We presume that this was a mistake in the draftsman, or in copying the motion in the record, and that he did not intend to use the word “ refusing,” but intended to object to the admission of the testimony. But even if there was any error in admitting this testimony, it was cured by legal proof of the fact from the testimony of the defendant himself when he was upon the stand. 3. It is very clearly disclosed by the testimony in the record that the excess in the note, which was the basis of this suit, of a few cents above the legal rate of interest was merely through inadvertence or mistake when the calculation of interest was made and embodied in the face of the note. There was manifestly no intent to violate the law of usury, and the charge of the court upon this subject complained of was proper. “ To rebut the presumption of usurious intent arising from the taking or reserving of interest greater than the legal rate, it is always competent for the party to show that the excess was the result of an honest mistake, and that there was in fact no intentional agreement for usury. Such mistakes most frequently occur in the computation of interest for fractional parts of a year; and whenever the creditor can show where the mistake occurred, and that he acted in good faith, the charge of usury is thereby rebutted. It is usually a question for the jury, whether a sum in excess of lawful interest was taken through an honest mistake, or corruptly.” 27 Am. & Eng. Enc. L. 970, and citations. The excess of interest claimed in this case being a very small fractional part, scarcely appreciable, we think, apart from the rule above laid down, we might say, as did Justice Simmons (now Chief Justice) in Lowry Banking Co. v. Abbott, 87 Ga. 134, “ De minimis non curat lex.” 4, 5. It is unnecessary to deal separately with the several grounds in the motion complaining of charges of the court. If there, is any error at all in any portion of the charge, it is so immaterial as not to authorize the grant of a new trial. The [171] entire charge fairly submitted to the jury the contentions of the parties and the issues involved. The evidence was amply sufficient to sustain the verdict. Judgment affirmed. All the Justices concurring.