Richmond v. Bloch

60 P. 388 | Or. | 1900

Mr. Chief Justice Wolverton

delivered the opinion.

The facts attending this case are briefly stated as follows: On February 23, 1897, a judgment was given and rendered in the Circuit Court of the State of Oregon, for Multnomah County, in favor of Adelaide Bloch, who was plaintiff therer in, and against F. L. Richmond and F. A. E. Starr, who were defendants therein, for the sum of $4,001.25, and $15.50 costs and disbursements, which was reduced by partial payments to $3,355.03. On June 30, 1897, F. L. Richmond, one of the plaintiffs herein, recovered a Judgment against the defendants Adelaide Bloch, M. M. Bloch, and F. Bloch for the sum of $1,300 and costs, taxed at $94.15; and upon this judgment the attorneys for plaintiff, who are co-plaintiffs herein, claim a lien for $1,000 as compensation for services in obtaining the judgment. The defendant Adelaide Bloch now seeks to have the judgment against her and co-defendants set off, so far as it is adequate for the purpose, against the judgment which she has ag-ainst the plaintiff herein and F. A. E. Starr. From an order denying tíie ap plication, defendants appeal.

This application comes in contravention of two general rules of law: (1) Where two or more defendants are jointly sued, one or more of them, less than all, cannot set off a debt clue to him or them only from the plaintiff; and (2) the defendant cannot set off a joint claim against plaintiff and another who is not party plaintiff in the action. See 22 Am. & Eng. Enc. Law (1 ed.), 287, 293; Gordon v. Swift, 46 Ind. 208; Bridgham v. Tileston, 5 Allen, 371; Langley v. Brent, 3 Cranch, C. C. 365 (Fed. Cas. No. 8,066); Waters v. Bussard, 2 Cranch, C. C. 226 (Fed. Cas. No. 17,262); Atkins v. Churchill, 19 Conn. 394; Snyder v. Spurr, 33 Conn. 407; Phelps v. Reeder, 39 Ill. 172; Peoria R. R. Co. v. Neill, 16 Ill. 269. There are exceptions to these rules, but the case made by the defendant who is seeking the set-off comes fairly within both their letter and spirit. Her judgment, under the showing, is a joint one against the plaintiff and Starr, the latter of whom is not a party plaintiff to this action, and under the same showing the judgment which plaintiff has is against her, M. M. Bloch, and F. Bloch, jointly; so that there is no gainsaying- the fact that these general rules have direct application to the controversy. The judgment of the court below being in harmony therewith, it will accordingly be affirmed. Affirmed.