The opinion
On Motion for Rehearing.
The defendant in error in the motion for rehearing presents no controlling decision or statute which is in conflict with the views' expressed in the opinion, and each question decisive of the case submitted by counsel was passed upon by this court.
Counsel calls our attention to Talbot v. First National Bank, 185 U. S. 172 , 22 Sup. Ct., 612, 46 L. Ed. 857 , as supporting the proposition that a sale on execution of the debt- or’s property is not a payment of usury as contemplated by the statute. In the case cited a foreclosure suit was brought against the debtor, and the court, finding that illegal interest had been contracted for, deducted the excess over the legal rate and rendered judgment for the principal sum and interest at the legal rate. The property sold was applied to the payment of the judgment for such principal and lawful interest. It was held that interest in excess of the lawful amount “may. be relinquished and recovery be had of the legal rate.” The court further observed:
“Indeed, it is a contradiction to say that interest may be recovered back which has not been paid, and whether it is relinquished before suit or deducted by order of the court before judgment, it is in neither case paid by the judgment or by the satisfaction of the judgment.”
It is nowhere hinted in the opinion relied upon that, if the judgment had been for more than the principal and interest at the lawful rate, the satisfaction of the judgment from the proceeds of the. sale of the debtor’s property would not have constituted payment of usurious interest. In the case at bar the unlawful interest was included in the judgment, and was paid through sale of property of the plaintiffs in error.
The defendant in error further complains because this court, in its opinion, assumed that the answer denying agency was not verified. Neither of the briefs filed show the answers to be verified. The brief of the defendant in error purports to set out in to-tidem verbis the answer filed, but does not show verification. Under rule 26 of this court ( 47 Okla. x , 165 Pac. ix ) it was his duty, if the abstract of plaintiff in error was incomplete, to set forth a counter abstract correcting omissions or inaeurracies. This court therefore had the right to assume that the answer was not verified, but whether or not the defendant in error shall be held strictly to the rule is immaterial. The undisputed evidence establishes the agency alleged, and, further, the opinion shows that in directing judgment this court did not consider the commission paid to the agent of the defendant, but directed judgment on the ground that the original note which was received and accepted by the defendant in error, thus brought to his knowledge, was usurious on its face; the judgment directed being only for twice the interest paid by plaintiffs in error on such note.
The petition for "rehearing should be denied.
By the Court: It is so ordered.