105 Wis. 355 | Wis. | 1900
The motion of a judgment debtor to apply his judgment upon one against him owned by his judgment creditor, is addressed to the sound discretion of the court and governed by equitable principles. The right of setoff, when the judgments are in the same action, or actions growing out of the same subject matter,, is' generally deemed superior to the claim of the attorney in either action for services and disbursements therein. Yorton v. M., L. S. & W. R. Co. 62 Wis. 367. But where the judgments are in actions having no connection with each other, the equitable right of the attorney, who has rendered services and incurred expenses in obtaining one of such judgments, to be paid out of it, is deemed superior to the right of the judgment debtor to have that judgment paid by applying upon it the judgment owned by him against his judgment creditor. Rice v. Garnhart, 35 Wis. 282; Jones, Liens, § 220; Benjamin v.
The right to set off one Judgment against another, as before indicated, being one of equitable discretion, where an assignment is made bona fide before the right of setoff attaches, the two judgments being in different actions and relating to different matters, the assignment will prevail;.and especially is that tthe case where the assignee was equitably entitled to the benefit of the cause of action without any assignment, as in this case. Mr. John Orth was entitled to the property unlawfully converted by the defendant. It could not have been taken by defendant as against Orth to satisfy any of the judgments sought to be offset, neither could any of such judgments have been allowed as a setoff or counterclaim in the action of conversion. The assignment to Orth was but a recognition of his equitable right to the benefit of the recovery of defendant. There seems to be no ground whatever for the claim that defendant has an equitable right to set his judgments off against the judgments against him, which is superior to the right of John Orth to the benefit of the latter judgment.
It is elementary that a prior assignment, whether legal or equitable, takes precedence of the right of setoff, if the as-signee’s equity is prior in time. Jones, Liens, §§ 223, 224; Terney v. Wilson, 45 N. J. Law, 282; Wright v. Wright, 70 N. Y. 96. That is decisive of this appeal. The property represented by the judgment was not subject to the payment of defendant’s claim before judgment. That situation was not changed by the rendition of the judgment so as to cut off the equitable rights of Orth. The agreement that Orth should have the benefit of the recovery, as a part of his security, attached to the judgment as soon as it was rendered, leaving no time for any right of the defendant to intervene. A mere verbal agreement between plaintiff and Orth, that
By the Oowrt.— The order appealed from is affirmed.
