Camp v. Pace

40 Ga. 45 | Ga. | 1869

Brown, C. J.

This was a motion to set-off a judgment rendered at the term of the Court at which it was-made, against a larger one which was dormant, in which the plaintiff in the judgment not dormant, was defendant, as surety, which the Court ordered to be done, by entering it as a credit upon the dormant judgment. Section 2851 of the Code provides that.judgments in the same Court may be set-off against "each other, on motion, the balance on the larger being collectable under execution. The dormant judgment in this case was rendered in the Inferior Court, and the other in the Superior Court; but as the Inferior Court is abolished and the late Constitution transfers its unfinished business to the Superior Court, no good objection can be made on the ground that the judgments were obtained 'in different Courts. They are now, in the language of the statute, “ in the same Court.”

We are satisfied, however, that the section of the Code above quoted does not apply in such a case as this. It is intended that the judgments set-off against each other be in full force, that'they be operative, not dormant — such as can be enforced by execution, as the balance on the larger one after the set-off is declared'to be “ collectable under execution.” In tipis case the balance is not collectable under execution, as the judgment is dormant, having no lien on any property of the defendant, and can not be enforced by execution till it has been first revived by a proper proceeding for that purpose.

We do not say there may not arise cases whero the peculiar equities between the parties may require such set-off. As in a case Where there is no good defense to'the scire facias to revive the dormant judgment, and the debt, of which it is the evidence, is justly and legally due, and the defendant, in the dormant judgment, is insolvent, and is proceeding to enforce his judgment against the other party, contrary to equity and good conscience. In a proper proceeding, upon such a state of facts, the dormant judgment might be set-off against the operative judgment, just as any other debt might be.

But this record makes no such ease. The fact that the five hundred dollars which Charles Camp owed Harry Camp, was by agreement to have been credited upon the judgment now dormant, is not sufficient. The record shows it was not so entered by Charles Camp in accordance with his agreement, and Harry Camp brought suit because it had not been done, and recovered judgment for the amount due him, and not a judgment of the Court that the credit be now entered. After the verdict and judgment in favor of Harry Camp for the five -hundred dollars, the Court, on motion, ordered that judgment entered asa credit on the dormant judgment, to which Harry Camp claims he has a valid defense, on the ground that he was only a surety and has been released by the act of the plaintiff. Upon this state of facts we think the Court erred in sustaiiiing the motion. .

Judgment reversed.