Patchell v. Harper, 139 P. 985

139 P. 985 | Okla. | 1914

From a judgment of the district court of McClain county rendered and entered October 14, 1910, overruling the motion of O. W. Patchell, plaintiff in error, plaintiff below, to set off a judgment of $150 and costs, which the defendant Harper had then and there recovered against him, against a judgment for $185 and costs, which he theretofore recovered against Harper before a justice of the peace, an abstract of which was on file with the clerk of said court and made an exhibit to the motion, Patchell brings the case here. We say the court overruled plaintiff's motion, for such was the effect of his action. What he really did, however, was to set off 50 per centum of the judgment which Harper had obtained against Patchell and refused to set off the remainder for the reason that after motion had been filed, and before it was passed upon, J. W. Hocker, attorney for Harper, asserted a lien thereupon, after the clerk had entered said judgment, by writing on the margin of the record, "Judgment claimed in fifty per centum of the amount received, J. W. Hocker," pursuant to Comp. Laws 1909, sec. 261, which reads:

"4. * * * After judgment in any court of record such notice may be given, and the lien made effective against the judgment debtor, by entering the same in the judgment docket opposite the entry of the judgment."

In refusing to set off the entire judgment the court erred. In Turner v. Crawford, 14 Kan. 381, the object of the suit, which was brought by Crawford, was to compel certain judgments which Turner had secured against him to be set off against a judgment which he had secured against Turner and for judgment for the balance due plaintiff. After Crawford's judgment had been rendered an attorney's fee had accrued as a lien upon the Turner judgments in favor of their assignee. The court held that neither assignment nor attorney's lien was in the way to a set off, and judgment went accordingly. The court said:

"We do not think that the assignment of the Turner judgments, to Hadley Glick, or their attorneys' lien on said judgment, can make any difference in this case. Crawford's claim and judgment existed prior to the Turner judgments, prior to said assignments to Hadley Glick, and prior to their attorney's lien. Turner could therefore not assign his judgments, nor the claims upon which they were rendered, nor incumber such claims or such judgments with attorney's liens, or any other kind of liens, so as to defeat Crawford's right to have his judgment or his claim compensate and pay the Turner judgments or claims. A Judgment is not like negotiable paper. It may be assigned, but will still be subject to all defenses, counterclaims and set-offs which the judgment debtor might, at the time of the assignment, have against it. This right of Crawford to have his judgment compensate and pay the Turner claims and judgments existed from the time the Crawford judgment was rendered down to the present time, and still exists, except possibly during the time the Crawford judgment was pledged to Bartlett Hale to secure attorney's fees, Crawford's right to use said judgment would have been subject to the consent of Bartlett Hale. If Turner had not assigned his judgments, or incumbered them with attorney's liens, his right to have his demand compensate that of Crawford up to the amount of his demand would have existed, notwithstanding the assignment of the Crawford judgment to Bartlett Hale.

"The view we have taken of this case is in accordance with our statutes. An action may be maintained in this state on a domestic judgment. Burnes v. Simpson, 9 Kan. 658. If either Turner or Crawford had commenced an action against the other on his judgment the other could have set up his judgment as an offset (Gen. St. 648, 649, secs. 94, 98) and section 100 of the Code provides that 'when cross-demands have existed between persons under such circumstances that, if one has brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other, but the two demands must be deemed compensated, so far as they equal each other.' Gen. St. 649. The view we have taken in this case is also in accordance with equitable principles."

— and affirmed the judgment of the trial court. The statute there construed is identical with Comp. Laws 1909, sec. 5640. See, also, Hroch v. Aultman Taylor, 3 S.D. 477, 54 N.W. 269.

Defendants in error have failed to file brief. Reversed with directions to set aside the judgment, and render and enter a judgment pursuant to this opinion.

All the Justices concur.