Smith v. Curtiss

38 Mich. 393 | Mich. | 1878

Marston, J.

The controversy in this case arises upon the defendant’s set-off. The defendant offered as a set-off a promissory.note which he claimed under and by virtue of an assignment of a judgment rendered thereon by a justice of the peace in an action commenced by attachment, in which property was levied upon but no personal service obtained upon defendant, and no appearance made by him. An execution had been issued upon the judgment, and property levied upon but afterwards abandoned by order of the plaintiff, as the property levied upon was claimed by other parties.

In this case the court held that the note pleaded as a set-off was legally merged in the judgment referred to, and could not be pleaded as a set-off in this action in the form of a note, and rendered judgment accordingly.

In this the court efred. There being no personal service in the case commenced by attachment and no appearance, and no part of the judgment rendered therein having been satisfied under the attachment proceedings, such judgment would not bar a personal action upon the note, or an assignment thereof to a third party. Adams v. Abram, ante p. 304.

The court found that the amount of plaintiff’s claim in this action was $266.48 and the amount of defendant’s set-off was $135.83, and that a proper tender of the difference between said demands was made at the commencement of this suit and still kept good. Under this finding the plaintiff will be entitled to a judgment for $130.65, and the defendant will be entitled to recover costs in the justice’s court, the circuit and in this court, and deduct the amount thereof from the amount of the plaintiff’s judgment.

Ordered acordingly.

The other Justices concurred.