110 P. 52 | Utah | 1910
Lead Opinion
This was a proceeding to set off judgments. The court entered judgment allowing the set-off, and appellant presents the record on appeal.
The material facts in substance are: That on the 27th day of March, 1906, A. E. Snow, who is desigated as plaintiff, commenced an action against respondent to recover the value of a certain law library and other property which said Snow claimed was exempt from execution and forced sale, and which said property had theretofore been seized and sold on an execution issued on a judgment in favor of respondent and against said Snow; that after said action was commenced by said Snow, he, on the 20th day of June, 1907, assigned his alleged cause of action to the appellant, subject, however, to the lien of Snow’s attorney, and upon the condition that if judgment should be obtained in said action the proceeds (subject to the attorney’s lien aforesaid) should be applied (1) to pay the sum of about $475 owing by said Snow to appellant, the assignee, (2) to pay one Eliza Snow Dumford “my (Snow’s) indebtedness to her, whatever the same may be,” and (3) the remainder, if any, in equal parts to A. E. Snow and George L. Savage “to apply upon my (Snow’s) indebtedness to them;” that thereafter, on the 12th day of September, 1907, a judgment was obtained in said action in favor of Snow and against respondent for the sum of $1050 and costs, which judgment was, by this court, affirmed in
Upon substantially the foregoing facts the district court granted respondent’s motion for set-off as follows: The court set off $362.20, the amount of the judgment obtained by Mr. Hyde, and the further amount of $139, the amount of the judgment obtained by respondent, which left unpaid and in force on the Snow judgment, on the date the set-off was made, the sum of $653.35, and all costs. No one is here complaining, except the appellant, the assignee of Mr. Snow.
The first assignment of error to be noticed is that the court erred in permitting the judgment which was entered for “the sum of 242.98” to be set off, for the reason that the same is not a judgment for an amount certain and is .therefore void. The cases of Carpenter v. Sherfy, 71 Ill. 427 and Avery v. Babcock, 35 Ill. 175, cited by appellant in support of his contention, seem to hold as contended for. We do not think, however, that those cases are based on sound legal principles. No doubt, judgments should be specific and certain. Judgments should, however, be read, construed, and applied as other writings are, and if
It is, however, further urged that respondent did' not become the owner of said judgment until after he was served with notice of the assignment of the claim by Snow to appellant, and hence the judgment could not legally be set off against the Snow judgment. We cannot assent to this contention. The judgment was in fact always the property of respondent, and Mr. Hyde never had any beneficial interest in it. A judgment, under such circumstan-
Respondent therefore, in either view, was the owner of the judgments in question which were made the subject of set-off. If there were no other legal obstacle in the way, the two judgments in favor of respondent and the one in favor of Snow which was conditionally assigned to appellant were, in our judgment, the subject of'Set-off. Whether mutual judgments should be set off and satisfied in that way, rather than by the ordinary method of enforcing them, rests largely within the discretion of the -court to which the application is made. Under the modem rule courts of law may set off judgments where the right to do so is clear. Ordinarily, however, where there are different interests involved, the application should be made in equity, and the
The following cases sustain our conclusion that, under the facts and circumstances, the judgments in question should be set off against each other pro tcmto. (Hendrickson v. Brown, 39 N. J. Law, 239-243; Hobbs v. Duff, 23 Cal. 596; McBride v. Fallon, 65 Cal. 301, 4 Pac. 17; Haskins v. Jordon, 123 Cal. 157, 55 Pac. 786.) See, also, 2 Black on Judgments, sections 953, 954, 1000, and 1001, where the question is discussed and the cases on the subject are, in part, collated.
It is, however, contended that the judgments of respondent could not legally be set off against the Snow judgment because the latter judgment was, in legal effect, immune against set-off, for the reason that it represented property which was exempt from seizure and sale on execution. We have already pointed out that we held in Snow v. West, supra, that the property converted by the respondent, for which the Snow Judgment was obtained, was exempt. Section 3244, Comp. Laws 1907, reads as follows:
“Whenever any personal property exempt, as provided in this title, is levied upon, seized, or sold by virtue" of an exeention, or wrongfully and unlawfully taken or detained by any person, the damages sustained by the owner thereof by reason of such levy, seizure, or sale, or unlawful detention or taking, and any judgment recovered therefor, shall be exempt from execution.”
The judgment therefore stood as representing the property, and if the property was exempt, the judg-
In view of our statute, however, the question is not open for discussion in this state. If Snow, or bis assignee, the appellant, was still entitled to claim the judgment exempt when the court allowed and entered the judgment of set-off, it may well be that the court erred in entering said judgment. For the purposes of this decision we shall assume, without deciding,' that the assignment of the claim from Snow to the appellant conferred upon him all the usual and ordinary rights of an assignee. By section 3247; which is in harmony with the law generally, it is provided that non-residents, or those who are about to depart from the state with the intention of becoming residents elsewhere, are not entitled to the benefits of our exemption laws. Snow left this state and ceased to be a resident thereof in January, 1905; the assignment of his claim to appellant was not made effective as against respondent until September, 1907, and the set-off of the judgments was not made until the 23d day of July, 1909.' Snow therefore had forfeited his
What we have said also disposes of all the other questions raised by appellant.
The judgment is therefore affirmed, with costs to respondent.
Rehearing
ON APPLICATION E0R- REHEARING-.
Appellant has filed a petition for rehearing upon the ground that we have failed to consider a material question. In determining the case we were of the opinion that the question now urged by counsel was not involved, but in view of his strenuous insistence and in deference to his contention we have concluded to make a few observations upon his application for rehearing. In support of the application counsel insists that the result reached by us in the opinion filed is contrary to the equitable doctrine that in a court of justice no one will be permitted to benefit by his own wrong. The contention is now seriously made that inasmuch as appellant’s judgment was obtained by reason of respondent’s wrongful and unlawful acts in causing appellant’s exempt books to be sold upon exception, and that appellant’s judgment was for that reason also exempt, that therefore if respondent be permitted, as we have held, to set off the judgments he has obtained against appellant’s judgment obtained as aforesaid, that respondent will be permitted to benefit by his own wrong. Numerous cases are cited in which it has
The counsel who makes the application frankly admits that he has found no case where the facts were as in the case at bar. Neither have we, and neither the doctrine invoked by counsel nor the cases cited by him, in our judgment, can have any application in this case.
It is not questioned that respondent’s judgments were based upon just claims, and that they were legally and properly obtained. True it is that appellant’s judgment was based upon the wrongful and unlawful acts of respondent in causing exempt property to be levied on and sold. The judgment that respondent obtained represented the exempt property, and for that reason was likewise exempt. But the judgment which in contemplation of law is property, lost its exempt character and ceased to be immune from legal attack by reason of the non-residence of appellant long before the district court allowed respondent’s judgments to be set off against appellant’s judgment. Suppose appellant had ceased to be a resident of this state and had left his books here, would any one question the right of any creditor to seize his books by legal process and- sell them, and apply the proceeds