People ex rel. Wells v. Circuit Judge for St. Joseph

39 Mich. 21 | Mich. | 1878

Per Curiam.

Motion is made for a mandamus to compel the judge below to allow a set-off of one judgment against another, which he refused on account of a dispute as to rights of an attorney and assignee.

It is very well worth considering whether the statute regulating set-off of executions may not have in some respects interfered with the power to set-off judgments on motion. But it is not necessary to determine this because the case before us does not require it.

It is well settled that the power of courts to set off judgments on motion and not in q regular judicial proceeding is subject to a much broader discretion than would be admissible in a suit for the same purpose, and that a set-off may be denied on motion which might be enforced by a regular action. In Simson v. Hart, 14 Johns., 63, which is a leading case, it was held that the denial of a set-off by motion was not subject to review and was not res judicata and was no bar to a bill in equity. The doctrine has been very fully discussed since, and the discretionary character of the proceeding pointed out in Purchase v. Bellows, 16 Abb. Pr., 105; Nicoll v. Nicoll, 16 Wend., 446; Martin v. Kanouse, 9 Abb. Pr., 370; Smith v. Lowden, 1 Sandf. S. C., 696; Gihon v. Fryatt, 2 Sandf. S. C., 638.

The case of Nicoll v. Nicoll was not unlike the present one, and' seems to have been followed by the circuit judge.

But we cannot properly review his discretion by mandamus.

The writ must be denied with costs.