28 P. 958 | Ariz. | 1892
On the ninth day of September, 1886, in the district court in and for the county of Pima, George T. Martin recovered judgment against Wells, Fargo & Company’s Express in the sum of $1,848.35. Afterwards, and pending a motion for a new trial, Martin remitted the sum of $319.35 of said judgment, leaving $1,529 as the judgment in force. This judgment was appealed from by Wells, Fargo & Com-
Both judgments, at the time the order was made, were among the records of said district court, as we take judicial notice that, by an act of the legislative assembly approved March 2, 1887, the county court in which the judgment against Martin was rendered was abolished, and its records transferred to and made part of the records of said district court. The power of a court of law, in a proper proceeding, to set off one judgment against another, when the demands remain mutual, is undoubted. It does not depend upon any statute, but rests upon the general jurisdiction of a court over its judgments and its suitors when before it. The practice is so ancient and well established that it is now regarded as one of the inherent
But one question is presented by the record in this ease, and that is whether or not it appears that the setting off of the judgment obtained by Wells, Fargo & Company against the judgment obtained by Martin has operated to deprive Underwood of any right he may have had by virtue of the assignment to him of the Martin judgment. Without a statute, a judgment is assignable only in equity. Such an assignment carries with it all existing equities, including the right of set-off between the assignor and the judgment debtor. Not only does the assignment carry with it all existing equities, but also any which may thereafter arise between the assignor and the judgment debtor before notice of the assignment to the latter which might be urged by the latter as a proper set-off to the judgment. The only statute upon the subject of assignment of judgments, as well as other non-negotiable choses in action, in foree at the date of the assignment of the Martin judgment to Underwood, was section 5 of chapter 48, Compiled Laws, which provided that, “in case of an assignment of a thing in action, the action of an assignor shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment,” and which simply expressed what was the equitable doctrine of assignments in the absence of a statute. The assignment of the Martin judgment was made on the ninth day of October, 1886. Without expressing any opinion as to whether this assignment from its terms was anything more than an assignment for the benefit of certain creditors named therein, we will, however, assume that it was an absolute assignment for value, subject, however, ■to such equities as an assignment of a non-negotiable chose in action carries with it. Was there, then, on the date of the assignment, any existing equity in the way of a right of set-off between Martin and Wells, Fargo & Company? If so then the assignment to Underwood carried with it such equity. The bill of exceptions purports to contain all the evidence ad
Gooding, C. J., Kibbey, J., and Wells, J., concur.