Richmond v. Bloch
38 Or. 317
Or.
1900
Check Treatment
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 *318County, 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 *319there 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.