Wahl v. Phillips

Lowe, J. This cause has been twice in this Court before ; once upon the appeal of the plaintiff from an order of the Court sustaining the defendants’ demurrer to the bill, which resulted in a reversal of the order; secondly, upon the appeal of the defendants from the order of the Court setting aside the judgment of dismissal of the plaintiff’s bill, which resulted in the affirmance of the same. In taking this last appeal, the defendants draw in question .the regularity of the proceedings in several other particulars, which can be very briefly disposed of First, it is claimed that the answer of the defendant, Smith Bray ton, denies the execution of the mortgage, as well as its acknowledgement, and the recording thereof; that it denies the transfer of said mortgage from Randal, the mortgagee, to the plaintiff, or that the notes specified were secured by said mortgage. It is said these denials put the plaintiff upon the proof of the allegations of his bill, which he failed to do, and that his bill should have been dismissed. The reply to this is, that this statement about the proof is contradicted by the record itself. The judgment entry states that “the Court, upon inspection of the record and the papers in the cause, after hearing the proofs of the plaintiff read in evidence, finds that the petition of the plaintiff is true,” &c. During the pendency of this cause, the plaintiff made written assignment of his judgment, and all his interest in this suit, for value, to Ithamer Cooley, which was filed with the papers in the cause; and in entering the final decree, it was made in favor of the said Cooley, as assignee, [481] instead of the plaintiff himself. This is urged as an irregularity, which should reverse the judgment. Why the defendant, Phillips, should object to this, is not apparent; not, certainly, because he is prejudiced by such an entry. If it were such an irregularity as we were bound to notice, the most we could do would be simply to substitute, in the judgment entry, the name of the plaintiff for that of Cooley; but this would neither benefit the defendant or injure the assignee — it would simply be an act of supererogation. Again,- it is insisted that the Court did wrong in allowing the plaintiff interest and costs, because, his claim being usurious, he was not entitled to either. It does not appear that any interest was allowed except what had accumulated since the date of the judgment at law, when the usury was cast out of the claim. The allowance of this was not improper. We fail to discover from the record before us what disposition was made of the costs. If the defendants had been required to pay them, we are not prepared to say that we would disturb the order, as we imagine most of the costs in this proceeding have been made by raising technical and unfounded objections to the'same. The judgment below will be Affirmed.