White v. Iltis

Berry, J. 1. This is an appeal from a judgment taken by plaintiffs, upon defendants’ default, in the district court.1 The summons gave notice that the plaintiffs would apply to the court to have the amount which they were entitled to recover “ascertained by the court, or under its decision, and-take judgment for the amount so ascertained, together with the costs and disbursements. ” It is evident that the word “decision” is, through a clerical inadvertence, used for the proper statutory word “direction.” But the mistake is of no importance. To say that the amount is to be “ascertained by the court or under its decision, ” is, in effect, to say that it is to be ascertained by the court in propria persona, or in such way as the court shall determine or direct. The objection to ¡the summons is therefore overruled. 2. The objections to the sufficiency of the complaint overlook explicit provisions of the exhibits which form a part of it. One of these exhibits (the contract of October 7, 1872) requires the notes turned over to plaintiffs by defendant ■Frederick to be guaranteed by him. One of the bond exhibits is conditioned that the defendant Frederick “shall pay unto the said L. C. White & Co. all moneys or indebtedness which shall become due to L. C. White & Co. under or pursuant to the within contract, (i. e., the contract to which the bond relates,) or which shall arise therefrom, whether by note, open account, indorsement or otherwise. ” The other bond exhibit is conditioned that defendant Frederick “shall pay unto the said L. C. White & Co. all moneys or indebtedness which shall become due the said L. C. White & Co. under or pursuant to the within contract, or which shall arise therefrom, whether by note, open account, indorsement, renewal or extension of notes or accounts, acceptances or otherwise.” Certainly these conditions are ample to cover the matters on account of which the defendants are sought to be charged in the complaint. 8. It is sought in this action to charge the defendants for [47] ■the amount of six promissory notes. The Pichette note was payable twelve months after date, with ten per cent, interest ■after six months. Of the two Wenholz notes one was payable twelve months after date, with interest at ten per cent.; the other two years after date, with interest at ten per cent. 'The Plocher note was payable six months after date, with interest at the rate of ten per cent., and twenty-five dollars have ■ ¡been paid upon it. The Frank note was payable twelve months after date, with interest at the rate of ten per cent. The litis note was payable eight months after date, with inter-, ■est at the rate of seven per cent. All of the notes contained this provision, viz.: “The rate of interest to be ten per cent, per annum, if not paid at maturity, and attorney’s fees at ten per cent, if placed in the hands of an attorney for collection.” The effect of this was, as respected each of the notes, to provide for the payment of a rate of interest after maturity higher than each drew before ma- ■ turity. Under the decision-of this court in Newell v. Houlton, 22 Minn. 19, such an agreement, to-wit, an agreement in a note to pay a greater rate of interest after maturity than before, is unauthorized and invalid, and its effect is to make the rate of interest after maturity seven per cent. In accordance with this rule the amount due upon the six notes involved in this action on October 30, 1876, the date to which interest was computed by the court below, in accordance with the report of the referee, was $492.56. The court, therefore, erred in finding the amount due on the notes on October 30, 1876, to be $561.31, and in rendering judgment for that sum accordingly. 4. The ease was sent to a referee “to hear the evidence therein and report the same to the court, with his opinion thereon,” but the determination of the ease was the actual determination of the court itself. Where a judgment in an action is the actual determination 'of a district court, and it appears upon the face of the record to be erroneous, the defendant may have it reviewed and the [48] error corrected in this court, although the judgment was rendered upon his default, and although he had taken no steps to have it corrected below. See Grant v. Schmidt, 22 Minn. 1. The judgment is ordered to be modified by reducing the principal amount adjudged from $561.31 to $492.56, and the case remanded for judgment accordingly.