88 Ky. 486 | Ky. Ct. App. | 1889
delivered tiie opinion of the court.
Section 17 of the Civil Code of Practice provides: “A judgment obtained in an ordinary action shall not be annulled nor modified by any order in an equitable ■action, except for a defense which arises or is discovered after the rendition of the judgment. But such judgment does not prevent the recovery of any claim which was not, though it might have been, used as a defense by ■way of set off or counter-claim in the action.”
Macklin’s Executor, in the case of McCown v. Macklin’s executor, 7 Bush, 308, had recovered a common law judgment on two notes against McCown, as the surety of Pepper. McCown, after having replevied these judgments, instituted an action in equity for the purpose of enjoining the collection of $531.17 on the first named judgment, and $133.96 on the other judgment, on the grounds, that said sums were in excess of what was really due upon said notes; that Pepper,.having ■made payments which were not credited on the notes, .and stipulated for the payment of usurious interest
In the ease of Emmerson’s administrator v. Herriford, 8-Bush, 230, Cook, as the administrator of Emmerson, filed his petition in equity for a settlement of his intestate’s estate. Iierriford appeared and filed .an answer, making the same a cross petition against Cook, in which he set up two judgments against Cook as administrator of' Emmerson, which he recovered in the Hickman Circuit Court, to be levied of assets, etc., and suggested a devastavit. Cook assailed these judgments upon the ground that Emmerson, in his lifetime, had fully satisfied the claims upon which the judgments were rendered. It was held that the defense was not available.
The appellee, on the trial, swore, as a witness, in substancé, that the appellant wrote to him, saying that if he, the appellee, would pay off the small note which was unsecured, he, the appellant, would wait on him for the-payment of the large note, which was secured, and he-
In the case of Moss v. Rowland’s Executor, 1 Duvall, 321, the question being whether or not a judgment by default could be thereafter modified by allowing, as a set-off’, usury which existed prior to the rendition of the judgment, and the plaintiff, subsequent to the rendition of tbe judgment, becoming a non-resident, it was held that the plaintiff becoming a non-resident after the rendition of the judgment, an equitable jurisdiction thereby attached to set off’ usury against the judgment, which set-off’ existed prior to the rendition of the judgment. It was expressly held that becoming a non-resident after the rendition of the judgment gave the court equitable
The appellee does not seek to recover judgment for the supposed excess of payment, nor does he ask for judgment, in his prayer, for said excess. His prayer is that the appellant be enjoined from collecting his judgment, except the sum of $274.32. Therefore, if the appellee has the right to recover the alleged excess of payment after a final judgment has been rendered, a common law action is his remedy, which the concluding part of his prayer — for all proper relief — does not embrace in this action in equity.
The judgment of the lower court is reversed, with directions to dissolve the injunction and dismiss the appellee’s petition.