Opinion
No. 744
Opinion Filed January 10, 1911.
USURY — Pleading — Sufficiency of Petition. A petition filed for the purpose of recovering alleged usurious interest by the party contracting for the payment of same should allege that the usurious interest had been paid and that the taking and receiving of the interest was knowingly done, and where these averments are lacking it is error to overrule a general demurrer thereto.
(Syllabus by the Court.)
Error from Johnston County Court; Nick Wolfe, Judge.
Action by J. W. Landis against the First National Bank of Mill Creek. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
S.C. Treadwell and John T. Young, for plaintiff in error.
The questions for review in this case are the same as those presented by the record and decided this term in First National Bank of Mill Creek v. Ellis ( ante). In this case, as in that, a demurrer to the petition upon the ground that there was no allegation therein that the defendant bank knowingly received and reserved for its own use the usurious interest alleged to have been received by it, was overruled. It was held that:
"A petition filed for the purpose of recovering alleged usurious interest by the party contracting for the payment of same should allege that the usurious interest had been paid and that the taking and receiving of the interest was knowingly done, and where these averments are lacking it is error to overrule a general demurrer thereto."
Upon this ground the judgment of the court below is reversed and the cause remanded to the court below for further proceedings consistent with this opinion.
DUNN, C. J., and HAYES and TURNER, JJ., concur; WILLIAMS, J., not participating.