Bahnsen v. Gilbert

VaNderburgh, J. The action is upon a promissory note executed to plaintiff by defendant, upon which a balance is claimed to be due. The defendant alleges that the consideration of the note moved from the husband of the plaintiff, and that the face of the note, which bears interest at ten per cent., covers the sum of $35, not actually received by him but which was included in the amount thereof as a bonus or usurious charge for the use and forbearance of the sum loaned in addition to the ten per cent, rate of interest called for by the note. The case was tried without a jury, and the court found generally “as matters of fact that all of the allegations of fact in plaintiff’s complaint are true.” This included the issue of the ownership of the note by plaintiff. The fact of its execution to her and of its possession was sufficient evidence of that, and of her right to sue upon it. But there is no finding covering the allegations of usury made in the answer and denied in the reply. There is evidence in the case tending to support the defendant’s allegations upon this issue. [337] And if the note was given for indebtedness dne to the husband of plaintiff and money advanced by him,, or even if the money was due to her, if he had full discretionary power in the matter, the mere fact that the note ran to her would not cut off the defense of usury. The findings are therefore incomplete. It is suggested, however, by the plaintiff's counsel that defendant’s remedy (the case having been tried by the court) was to have followed the rule laid down in Warner v. Foote, 40 Minn. 177, (41 N. W. Rep. 935,) applied in cases tried by the court, on the ground that the trial court in such cases may amend its findings upon the proper application, which should be duly made to that court, and which was not done in this case. But the conclusive answer to this objection is that there was no opportunity to apply to the judge who tried the case, because his official term expired so soon after the decision was filed that there was no opportunity to make such application. His successor could not decide or make findings in a case not tried by him. So the case must stand as an exception to the rule referred to, and on the same basis as if tried by a jury, and an incomplete special verdict rendered. In other words, the issues not being disposed of, there was a mistrial. Pint v. Bauer, 31 Minn. 7, (16 N. W. Rep. 425;) Crich v. Williamsburg City Fire Ins. Co., 45 Minn. 444, (48 N. W. Rep. 198,) and cases cited. The case, though made and settled after judgment, was in time, and was properly included in the return subsequently made to this court, notwithstanding the fact that the notice of appeal had already been served. We see no reason why the successor of the trial judge who tried the case was not competent to settle the proposed case, which was done upon due notice, and after hearing the parties, upon the stenographer’s minutes of the evidence and proceedings upon the trial. It is also objected that the application to settle the case should not have been entertained, because the time for making a case had then passed by. This objection cannot be sustained. We do not, of course, hold that the trial judge could arbitrarily disregard the statute, though he might, upon a proper showing, in his discretion, relieve a party from his default. But the error complained of is one which affects no substantial right, and it will not be considered on appeal from the judgment. Besides, if the case was not proper [338] ly made a part of tbe record, the plaintiff should have moved to strike it from the return. Mower v. Hanford, 6 Minn. 542, (Gil. 372.) (Opinion published 56 N. W. Rep. 1117.) Judgment reversed, and new trial ordered.