Babcock v. Jewell

HOUSER, J.

Plaintiff brought an action to recover from defendants alleged usurious interest and penalty for the

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exaction thereof. The original complaint contained the allegation that the defendants “did take and receive from the plaintiff herein the sum of three hundred seventy-two and 09/100 dollars ($372.09) for the loan by defendants to plaintiff of the sum of twelve hundred eighty-eight dollars ($1288.) in money for six (6) months, which said loan the plaintiff did fully repay; ... ”. Later, an amended complaint was filed by which it was charged that the amount received by defendants was $6,172 for a loan made by defendants to plaintiff of the sum of $4,500 for six months. Judgment was rendered in favor of plaintiff in the sum of $2,557.71.

Among other defenses to the amended complaint, defendants Jewell alleged:

. “That the transaction set forth in plaintiff’s complaint is an entirely different transaction from that set forth in plaintiff’s original complaint; that the transactions between the plaintiff and defendant were separate, distinct transactions involving separate and distinct purchases of trust deeds at a fixed and definite discount. . . .

“That several causes of action have been improperly united in said complaint which does not appear upon the face of said complaint but that nevertheless said alleged cause of action set forth in plaintiff’s complaint includes three separate transactions all of which are barred by section 3 of that certain initiative measure adopted by the people at a general election on November 5, 1918, and designated and known as the ‘Usury Law of the State of California’, for the reason that more than one year has expired since the payment of any of said obligations and the filing of said amended complaint.”

With reference to the facts upon which such defense was founded, the trial court found “that all the allegations of the answer (except certain facts not here material) are untrue”.

The only point expressly made by appellants in their opening brief is that the trial court erred in determining that plaintiff’s alleged cause of action was not barred by the statute of limitations. However, the point upon which the applicability of the statute turns, and which is argued by respective counsel, is whether, considering the complaint