Reynolds v. Neal , 91 Ga. 609 ( 1893 )

Bleckley, Chief Justice.

1. When a case is on appeal in the superior court from a justice’s court, any amendment of the summons, whether in matter of form or of substance, may be made which could have been made whilst the case was pending in the primary court. The only restriction on either court is, that there must be enough to amend by. Code, §3479. There was enough to amend by in the present case, and the amendments made cured the defects complained of.

2. Surely the appellant should not be allowed to break up his own appeal by urging that he had taken it too late, or from a void judgment, or from one too small in amount. After securing the delay incident 'to the appeal, he might well bide the election of the other party on such questions as these. What the appellate court might do on its own motion for its own ease or protection, need not be considered. Certainly, it is not obliged to take notice of such things at the instance of the appellant, but can assume without inquiry or examination that the appeal was well taken, the other party being satisfied with it.

3. The consolidated ease was not subject to be reopened or remodeled or defeated by looking into the amount involved in one of the separate cases embraced in the consolidation. The order or judgment of consolidation was passed at the instance of both parties. "Why should it be disregarded at the instance of one of them ? Besides, the one who sought to recede was the appellant, the same party who brought all the cases into the superior court and caused that court to be troubled with them. For this reason, the principle of the ruling just made under the preceding head of this opinion applies here also.

4. On the question of usury, it is to be observed that there was no usury law in force when these notes were given. This being so, there was no obstacle to charging interest to an unlimited amount for the future use of money then due from the debtor to the creditor, and for future forbearance to require or enforce payment; and it mattered not whether a part of the interest so charged was added to and made a part of the principal of the notes, and a part covered by a rate named in the notes as that which the principal, thus enlarged, was to bear; or whether the amount actually and legally due when the notes were given, and that only, was made principal, and the whole interest provided for by naming in the notes a rate of interest on that principal which would produce, by the time the new term of credit expired, an aggregate sum for interest equal to the total interest ■charged. It is matter of indifference, when there is no usury law in force, whether interest, the whole or a part of it, be added to the principal, or whether the principal, pure and simple, he expressed in the note, and the rate of interest named in the instrument be made high enough to produce all the interest agreed upon. In the notes now under consideration, a part of the sum charged for interest and agreed to be paid was incorporated with the principal, and a part was to accumulate as interest eo nomine at the rate mentioned on the face of the notes. But the two controlling facts are : first, there was a sum actually and legally due as the principal of prior notes at the time the new notes were given;. and, secondly, a new term of credit was agreed upon, and the day of payment of the money already due was postponed accordingly. This postponement was a'sufficient consideration for all the interest agreed upon and promised in the new notes, both that which was embraced in the notes as principal, and that which was not so embraced, but was provided for by the rate of interest which the notes specified. True, this would give interest upon interest to the extent of so much of the nominal principal as was made up of interest; but compound interest is not usury, any more than simple interest is usury, when no usury law is in existence.

Thus far, we have treated the case without reference to the fact that the notes now in controversy were given m renewal of prior notes which were infected with usury. Rid the infection of the first set of notes taint the second ? "We think not. The usury, of the first set did not taint the principal of that set, but left it pure and collectible. That principal went into the second set. As there was no usury law, the granting of further time for paying that money upon a new agreement was the same, in effect, as ■ receiving on the first notes that amount of money in payment, and then loaning it again for the new term of credit and taking therefor these new notes. Had this course been pursued, no one would suspect or imagine that any of the interest covered by the new notes would have been usury. With a good principal, a term of credit to serve as a consideration for unlimited interest, and no usury law, how is it possible to make a contract which can rightly be held to be tainted with usury, either as to the whole of the interest, or any part of it? Ballard v. Peoples Bank, 61 Ga. 458. Judgment affirmed. Cross-bill dismissed.