Overton v. Tarkington

106 S.E.2d 717 (1959) 249 N.C. 340

Levy L. OVERTON
v.
R. O. TARKINGTON and wife, Mary Marsh Tarkington (Original Defendants), and Starlite Theatres, Inc. (Additional Defendant).

No. 162.

Supreme Court of North Carolina.

January 14, 1959.

Rom B. Parker, Enfield, and J. C. Taylor, Halifax, for plaintiff appellee.

Daniel R. Dixon, Raleigh, for original defendants, appellants.

George C. Hampton, Jr., Greensboro, for additional defendant, appellee.

RODMAN, Justice.

It is not asserted the contract sued on is a negotiable instrument. Plaintiff seeks to recover as an assignee of a chose in action. The rights of the parties are to be determined on that assertion.

Plaintiff, as an assignee, is by statute, G.S. § 1-57, given the right to maintain the action in his name but that right is circumscribed by the express provision that it shall be without prejudice to any offset or other defense existing at the time of the assignment.

Plaintiff does not challenge the right of defendants to assert a usurious charge included in the instrument sued on with the right to have the evidence of the debt reduced to the extent of such charge. Guaranty Bond & Mortgage Co. v. Fiar Promise A. M. E. Zion Church, 219 N.C. 395, 14 S.E.2d 37; Faison v. Grandy, 126 N.C. 827, 36 S.E. 276; Ward v. Sugg, 113 N.C. 489, 18 S.E. 717, 24 L.R.A. 280. Plaintiff denies defendants have a right to assert defensively or affirmatively the penalty for usurious interest collected by his assignor.

Defendants, in the answer as originally filed, asserted a liability imposed on the assignee for usurious payments made to the assignor; but by amendment to the answer they no longer claim such payments as a sword which they can use to attack the plaintiff. So far as plaintiff is concerned they now merely claim the right to use it as a buckler to shield and protect them from the attack made by plaintiff. The order striking the allegations deprived defendants of this asserted right. By the express language of the statute if the allegations could be asserted as a defense in an action by the assignor, they can be used for that purpose in this action.

Our statute, G.S. § 24-2, provides: "And in case a greater rate of interest has been paid, the person or his legal representatives or Corporation by whom it has been paid, may recover back twice the amount of interest paid in an action in the nature of an action for debt."

Plaintiff's position is that the statute provides a penalty and for that reason must be strictly construed. When so construed, the words "may recover back" provide a weapon which a debtor who has paid usurious interest may use for attack, as illustrated by Sloan v. Piedmont Fire Insurance Co., 189 N.C. 690, 128 S.E. 2; but its use is limited to that purpose—it may not be used defensively. Our decisions are to the contrary. Stacy, C. J., said in Waters v. Garris, 188 N.C. 305, 124 S.E. 334, 336: "From an examination of the above section it will be seen that two remedies are provided for the enforcement of the penalties authorized by the statute: First, where a greater rate of interest than 6 per centum per annum has been paid, the person or his legal representatives or the corporation by whom it has been paid may recover back twice the amount of interest paid in an action at law in the nature of an action for debt. Planters National Bank of Virginia v. Wysong & Miles Co., 177 N.C. 380, 99 S.E. 199, 12 A.L.R. 1412. Second, in any action brought by the creditor to recover upon any usurious note or other evidence of debt affected with usury, it is lawful for the party against whom the action is brought to plead as a counterclaim or set off the penalties provided by the statute, to wit, twice the amount of interest paid, and also the forfeiture of the entire interest charged."

Authoritative interpretation given to the Federal statute, 12 U.S.C.A. § 86, accords with plaintiff's construction of our statute. McCollum v. Hamilton Nat. Bank, 303 U.S. 245, 58 S.Ct. 568, 570, 82 L.Ed. 819. This difference in interpretation is noted in the well considered opinion of Bobbitt, J., in Commercial Credit Corporation v. Robeson Motors, 243 N.C. 326, 90 S.E.2d 886, 54 A.L.R.2d 1337. The Court there reaffirmed the right to plead usurious interest paid as a defense. No sound reason is advanced for reversing the conclusion heretofore reached.

It follows that since defendants had a right to plead the usurious payments as a setoff or defense to any action brought by the original creditor, he could not evade the express language of the statute by assigning his debt to a third person. There was error in striking the allegations of the usurious payments made to Starlite. Standard Amusement Co. v. Tarkington, 247 N.C. 444, 101 S.E.2d 398; Iselin & Co. v. Saunders, 231 N.C. 642, 58 S.E.2d 614; North Carolina Bank & Trust Co. v. Williams, 201 N.C. 464, 160 S.E. 484; Pully v. Pass, 123 N.C. 168, 31 S.E. 478.

Our statute, G.S. § 1-73, makes it mandatory "when a complete determination of the controversy cannot be made without the presence of other parties" for these others to be made parties to the action. They are necessary parties. Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843.

In a single instance our statute gives a party the right to bring in others not necessary parties, i. e., the right to bring in joint obligors for contribution. G.S. § 1-240.

When not regulated by statute the procedural processes which will best promote the administration of justice are left to the judicial discretion of the trial judge. He has plenary power with respect to those who ought to be made parties to facilitate the administration of justice. Childers v. Powell, 243 N.C. 711, 92 S.E.2d 65; Jackson v. Baggett, 237 N.C. 554, 75 S.E.2d 532; Marriner v. Mizzelle, 205 N.C. 204, 170 S.E. 650; Horne v. Horne, 205 N.C. 309, 171 S.E. 91.

The order making Starlite a party defendant so that the original defendants might have affirmative relief against Starlite was entered without notice to plaintiff or Starlite. It recites that Starlite is a necessary party. Starlite and plaintiff were entitled to be heard on the question of defendants' right to make Starlite a party. On the hearing on that question Judge Morris held that Starlite was not a necessary party. That holding is supported by carefully considered prior decisions. Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E.2d 659; Board of Education of Perquimans County v. Deitrick, 221 N.C. 38, 18 S.E.2d 704; Clark v. Pilot Freight Carriers, 247 N.C. 705, 102 S.E.2d 252; Hannah v. House, 247 N.C. 573, 101 S.E.2d 357; Kimsey v. Reaves, 242 N.C. 721, 89 S.E.2d 386.

Apparently Judge Morris recognized Starlite as a proper party on account of the implied warranty arising from the assignment. Bird v. Ross, 12 N.C. 472; Drennan v. Bunn, 124 Ill. 175, 16 N.E. 100, 7 Am.St.Rep. 354; Challis v. McCrum, 22 Kan. 157, 31 Am.Rep. 181; Carroll v. Nodine, 41 Or. 412, 69 P. 51; 6 C.J.S. Assignments § 101, p. 1159. The motion of defendants to make Starlite a party when it was not a necessary party but a proper party called on the presiding judge to exercise his discretion. His order recites he refused in the exercise of his discretion to make Starlite a party. His ruling in that respect is not reviewable. Horne v. Horne, supra.

Under the factual situation depicted in Standard Amusement Co. v. Tarkington, supra, the additional defendants were not merely proper parties; they were necessary parties. Therein lies the distinction between that case and this case.

The order reviewed will be modified to conform to this opinion, and as so modified is affirmed.

Modified and affirmed.

PARKER, J., not sitting.