163 Wis. 404 | Wis. | 1916
It appears without dispute that the plaintiff at the time of the trial of the replevin action was the owner of the claims which she endeavored to present in that action as a setoff to the defendant’s claiin for the value of the property taken by her in the replevin action over and above the rental value of the premises. Under all the circumstances of this case the fact that she derived her legal title to these claims by purchase from the trustee of her husband’s bankrupt estate is not material. The Langlade Mercantile Company, from which the claim was purchased, was owned by the husband. The items of the account were paid partly by the-plaintiff and partly by the husband and the account kept on. the books of the Langlade Mercantile Company. Looking at the substance rather than the form of things, we see no reason why these items did not constitute a proper setoff in the re-plevin action. The claims related directly and specifically to the transactions had between the parties relating to the leased premises. Had the court permitted the plaintiff to prove her claims in the replevin action, the amount of the judgment in favor of the defendant Henry and against the plaintiff would have been decreased by the amount thereof. At the suggestion of the court the matters were withdrawn from the re-plevin action and later tried in another action. It is not claimed in this case that there was any attempt to comply-with the provisions of sec. 2591a, Stats. The right of the in-terveners is based upon the well established rule that an attorney has an equitable lien upon a judgment when rendered,.
“The motion of a judgment debtor to apply his judgment upon one against him owned by his judgment creditor, is addressed to the sound discretion of the court and governed by equitable principles. The right of setoff, when the judgments are in the same action, or actions growing out of the same subject matter, is generally deemed superior to the claim of the attorney in either action for services and disbursements therein. Yorton v. M., L. S. & W. R. Co. 62 Wis. 367, 21 N. W. 516, 23 N. W. 401. But where the judgments are in actions having no connection with each other, the equitable right of the attorney, who has rendered services and incurred expenses in obtaining one of such judgments, to be paid out of it, is deemed superior to the right of the judgment debtor to have that judgment paid by applying upon it the judgment owned by him against his judgment creditor. Rice v. Garnhart, 35 Wis. 282; Jones, Liens, § 220; Benjamin v. Benjamin, 17 Conn. 110; Diehl v. Friester, 37 Ohio St. 473; Wells v. Elsam, 40 Mich. 218; Kinney v. Robison, 52 Mich. 389, 18 N. W. 120.” Gauche v. Milbrath, 105 Wis. 355, 357, 81 N. W. 487.
In this case the trial court held, and the holding is strongly supported by the evidence, that the judgment in the accounting action related to the same subject matter as the judgment in the replevin suit, and that the right of the plaintiff to have the judgment set off is therefore superior to the lien of the attorneys for the defendant. To hold otherwise, under the circumstances in this case, would be to hold that the court did not have power to do justice between the parties, as it was at the suggestion and direction of the court that the matter was disposed of in two actions instead of one. The order of the trial court is therefore right.
By the Court. — Order affirmed.
