
    [File No. 5924.]
    PAUL LUTZ and Alma Lutz, Respondents, v. JAMES A. COFFEY and Josephine A. Coffey, et al. JAMES A. COFFEY and Josephine A. Coffey, Appellants.
    (238 N. W. 31.)
    
      Opinion filed June 15, 1931.
    
      Coffey & Btrutz, for appellants.
    
      A. W. Aylmer and Carr & Biltgers, for respondents.
   Burnt, J.

This is one of three cases between these same parties argued at tbe same time, and is known as case number two. It involves tbe foreclosure of a second mortgage on tbe land involved in case number one, being tbe case where tbe opinion of this court was written by Judge Birdzell, ante, 105, 237 N. W. 783.

There are three main issues to be determined — tbe legality of tbe power of attorney given for foreclosure purposes; tbe effectiveness of tbe notice before foreclosure; and the.amount of interest charged after tbe maturity of the debt.

Tbe legality of a similar power of attorney is determined in case number one, and tbe decision rendered therein controls here. Tbe power of attorney issued in this case is sufficient.

Objections to tbe notice before foreclosure and its service, similar to those urged herein, are discussed in case number three, where tbe opinion of this court was written by Judge Burke, post, 433, 238 N. W. 29. Tbe facts are practically identical and tbe rules announced therein are determinative here.

Tbe issue as to excessive interest arises from tbe fact that tbe note and mortgage provide for interest at eight per cent payable annually until maturity, and nine per cent 'per annum after maturity. Tbe note and mortgage were executed November 24, 1920, and consequently after chapter 166 of tbe Session Laws of 1919, being § 6072a of the Supp., came into force. This statute says: “Tbe rate of interest on all indebtedness hereafter incurred shall be tbe same after maturity as before maturity, and any contract attempting to make tbe rate of interest higher after maturity shall be void as to such increase of interest.”

Respondents say tbe question of excessive rate of interest is not raised by tbe pleadings, and did not become an issue in tbe trial court; that there is nothing in the answer which specifically pleads this as a defense. However tbe complaint set forth tbe note and mortgage and alleges this extra interest is due. Tbe answer contains a general denial of allegations not admitted or explained and therefore denies that this extra interest is due. Tbe appellants demand a review of tbe entire case in this court. Tbe respondents say in their brief in this court, that “these pláintiffs are not asking for, nor do they want anything more than they are legally entitled to.” Because of no arguments thereon in tbe lower court they inadvertently overlooked tbe provision of tbe statute quoted and computed interest as set forth in tbe note. It being-conceded tbe increased rate contracted for after maturity is void, and that this amounts to $138.80, tbe judgment should be reduced in this, amount and with such reduction in amount tbe judgment appealed from is affirmed.

Oi-ibistiaNSON, Cb. J\, and Nuessle, Biedzell and Bueee, JJ.,, concur.  