Edgerton v. . Johnson

Oct 16, 1940
Versions:218 N.C. 300
10 S.E.2d 918
1940 N.C. LEXIS 145
Stagy, C. J.

The procedure here adopted finds support in the case of Hogan v. Kirkland, 64 N. C., 250. There a similar motion was made and allowed in the absence of a claim of exemption from sale under execution, such as the defendant is making here. This is the only essential difference between the two cases. It was intimated in the Hogan case, supra, however, that this difference might be vital. And so it is, because the motion has the same effect as an execution. It amounts to “final process” within the meaning of Art. X, sec. 1, of the Constitution, which provides that the personal property of any resident of this State, to the value of $500, to be selected by such resident, “shall be and is hereby exempted from sale under execution or other final process of any court, issued for the collection of any debt.” Curlee v. Thomas, 74 N. C., 51; Smith v. McMillan, 84 N. C., 593.

*302 Epitomizing the decisions oil tbe subject, it is said in Mclntosb on Procedure, page 876: “Where the plaintiff recovers a judgment against the defendant, and the defendant later recovers a judgment against the plaintiff in a different action, each has the right to have his judgment considered in determining his personal property exemption, and the court cannot direct that one judgment be set off against the other as a satisfaction, where the party claims his exemption.”

It will be observed that the exemption is not available before judgment, so as to destroy the right of counterclaim or set-off. McClenahan v. Cotten, 83 N. C., 333. Otherwise, one could recover judgment when, on a balance struck, nothing would be due him. The exemption can only be claimed by the defendant in an execution. Lynn v. Cotton Mills, 130 N. C., 621, 41 S. E., 877.

The plaintiff asserts that the weight of authority favors the set-off as between the judgments, and that the conclusion here reached is in conflict with the equities of the case. Annotation: 121 A. L. R., 478. The opinions cited are from states which have no constitutional provision such as ours. In 25 C. J., 128, it is said: “According to the weight of authority a set-off cannot be allowed where it would defeat a debtor’s exemption rights.” And in 34 C. J., 707, the author appends the following footnote: “Two judgments held by adverse parties do not necessarily extinguish each other to the extent of the smaller, if one may be claimed as a personal property exemption; where it cannot be reached by attachment, execution or garnishment, it cannot be reached by set-off.” See Annotations: 20 A. L. R., 276; 106 A. L. R., 1070; and 121 A. L. R., at page 501.

The defendant is within his constitutional rights in claiming the exemption. “It is confirmed by the Constitution and is inviolable.” Duvall v. Robbins, 71 N. C., 218.

Affirmed.