17 Kan. 328 | Kan. | 1876
The opinion of the court-was delivered by
The plaintiffs in error moved the district court of Labette county to set-off one judgment against another. The court overruled the motion, and this ruling is now presented for review. The facts are these: The Laflin & Rand Powder Company sued Miller. In that action an attachment was issued, and plaintiffs in error went on the bond as sureties. The attachment was dissolved, and Miller brought suit on the bond against plaintiffs in error for damages. Both actions stood for trial at the same term. The first-named case was tried first, and judgment entered, and thereafter, and before the verdict in the second was returned, this assignment was filed, to-wit:
“For the purpose of indemnifying Sylvester P. Herman ■and "W. J. Herman, the defendants in the case now pending in this court wherein Vm. Miller is plaintiff and said parties are defendants, the plaintiffs herein hereby assign to Sylvester P. Herman and W. J. Herman the proceeds in the above-entitled cause. June 15th,, 1875.
“Laelin & Rand Powder Co., Plaintiffs,
By True & Madaris, their AttorneysT
Should the ruling of the district court be reversed, and a set-off ordered? We think not. While courts have the unquestioned power to off-set judgments upon motion, yet the exercise of that power is in some degree discretionary, and it will not be exercised in cases in which it would be inequitable so to do. Taylor v. Williams, 14 Wis. 155; Burns v. Thornburgh, 3 Watts, 78; Simson v. Hart, 14 Johns. 63; Zogbaum v. Parker, 55 N. Y. 120; Waterman on Set-Off, § 342; Simpson v. Lamb, 40 Eng. L. & E. 59. In the case from 3 Watts, the court says, that “the power to set one judgment off against another is an inherent one, and the only equitable power which the common-law courts originally possessed. Not being conferred by the statute, it is not a legal power, nor its exercise demandable of right; and being discretionary, the propriety of its exercise cannot be questioned here, where we are incompetent to judge of the circumstances.” And in the case in Johnson’s Reports, it was decided that “a court of law allows set-offs of judgments ex gratia, but a party applying to a court of equity is entitled to it as a matter of right.” It is apparent from the facts of this case that the court in the above quotation was comparing the remedy by motion with that by bill in equity, and that it meant thereby that
Again, a party must be the absolute and beneficial owner of a judgment before he can have it off-set a judgment against him. It seems fairly questionable whether this assignment was an absolute and unconditional transfer, or made simply to cancel by off-set the judgment in favor of Miller, and intended to be made only to the extent necessary to accomplish that purpose. The assignment was made before Miller had any verdict, and while it was yet uncertain whether he ever would have one, or if he did, what would be its amount. Suppose Miller had recovered nothing, what interest would the Hermans have taken by this assignment in the powder company’s judgment? See upon this point, the cases of Miller v. Gilman, 7 Cow. 468; Turner v. Satterlee, 7 Cow. 480;
The judgment will be affirmed.