42 Conn. 354 | Conn. | 1875
William W. Olmstead, the defendant in error, brought a petition to the Court of Common Pleas liolden at New Haven on the first Monday of September, 1872, in which he alleged that George W. Goodsell, the plaintiff in error, had obtained a judgment against him for the sum of $68.01. damages and $4.63 costs of suit, and that execution had issued; that the judgment was unjust and erroneous, and was for a sum nearly three times as large as the amount of his actual- indebtedness to Goodsell; and that it was procured by Goodsell by fraud and deception, and in violation of certain agreements made by him. Upon this petition the Court of Common Pleas perpetually enjoined Goodsell from proceeding in the levy of his execution, or in any way enforcing payment of the same, and from bringing any suit upon the judgment; of which decree Goodsell complains.
Upon the admission of Olmstead he was, and now is, justly indebted to Goodsell to the extent of one-third of the amount of the judgment rendered against him by the justice of the peace. The claim upon him for that indebtedness was merged in the judgment, and that judgment has never been set aside, annulled, or vacated. He has caused Goodsell to be perpetually enjoined against enforcing it, while in his petition he admits, and brings to the notice of the court the fact, that a debt justly due from him is represented in it; and thus, by the aid of a court óf equity he has protected.himself forever against the payment of a debt which he admits that he owes.
It is true that he alleges that the judgment was obtained by
Olmstead was entitled to protection, in the form in which he obtained it, only against that portion of the judgment which is in excess of his admitted indebtedness. Goodsell should be allowed to collect the undisputed balance. 2 Story Eq. Jurisprudence, sec. 880; Hodge v. Planter, 7 Gill & Johnson, 311.
There is error in the decree complained of, and it is reversed.
In this opinion the other judges concurred; except Phelps, J., who did not sit.