Pirie v. Harkness

Decision Date18 June 1892
Citation3 S.D. 178,52 N.W. 581
PartiesPirie et al. v. Harkness.
CourtSouth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. Section 5109, Comp. Laws, provides that “mutual final judgments may be set off pro tanto, the one against the other, by the court, upon application and notice.”

2. Section 470, Comp. Laws, provides that an attorney has a lien upon “money due his client in the hands of the adverse party *** in an action or a proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to such adverse party,” etc.

3. Under these statutes, both the right to set-off and the right to attorney's lien are dormant until actively asserted; and proceedings regularly initiated, though not concluded, in court, to set off mutual final judgments, will not be affected by a subsequent notice by the attorney of his claim for lien.

4. In a proceeding for a set-off of mutual judgments a judgment will not be protected as exempt under section 5128, Comp. Laws, providing for “additional exemptions,” unless it is plainly claimed as such, and appropriate steps taken to establish the right of such exemption.

Appeal from circuit court, Clark county; J. O. Andrews, Judge.

L. C. Harkness had a judgment against Carson, Pirie, Scott & Co. for $122.35, and the company, having a judgment against Harkness for $909.55, applied on motion to have this judgment set off pro tanto against their judgment. The attorney of Harkness claimed a lien of $65 on the judgment against the company, and from an order denying the application, except as to the balance, the company appeals. Reversed and remanded.

Hassell & Myers, for appellants. S. B. Van Buskirk, for respondent.

KELLAM, P. J.

This was a motion to set off mutual judgments. Respondent had a judgment against appellants for $122.35. Appellants, having a judgment against respondent for $909.55, applied to the court on motion to have respondent's judgment credited upon or set off pro tanto against their judgment against respondent. Appellants gave notice to respondent's attorney of such application on the 19th day of March, 1891. After the service of such notice, but upon the same day, respondent's attorney mailed to appellants in Chicago “notice that he claimed a lien upon the judgment *** for the sum of $65.” Upon these facts the court denied the application to set off, except as to the balance of said judgment, over and above the $65, claimed under the attorney's lien, and as to such balance it was allowed. From this order appellants appeal. The case was argued before us as though it necessarily involved the general question of superiority between the attorney's lien and the right to have mutual judgments set off, but we do not think it does. Section 5109, Comp. Laws, provides that “mutual final judgments may be set off pro tanto, the one against the other, by the court, upon proper application and notice.” Section 470, Comp. Laws, provides that an attorney has a lien upon “money due his client in the hands of the adverse party *** in an action or a proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to such adverse party,” etc. Now, both of these rights exist under the statute, but each is a dormant right until asserted. Neither judgment holder may ever ask the court for a set-off, and the attorney may never take any steps to claim or perfect his lien. Both rights are simply possible, abstract rights, until asserted, and thus made active and operative. The attorney's lien attaches and becomes an active instead of a potential right, “from the...

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12 cases
  • Northwestern Port Huron Co. v. Babcock
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 8 Marzo 1915
    ...... institution of proceedings to set off the judgments, except. as to mutual judgments rendered in the same action. Pirie. v. Harkness, 3 S.D. 178, 52 N.W. 581; Hroch v. Aultman & T. Co., 3 S.D. 477, 54 N.W. 269; Sweeney. v. Bailey, 7 S.D. 404, 64 N.W. 188; Lindsay v. ......
  • Humptulips Driving Co. v. Cross
    • United States
    • United States State Supreme Court of Washington
    • 16 Noviembre 1911
    ...96 Iowa, 477, 65 N.W. 413; Wagner v. Goldschmidt, 51 Or. 63, 93 P. 689; Elliott v. Atkins, 26 Neb. 403, 42 N.W. 403; Pirie v. Harkness, 3 S. D. 178, 52 N.W. 581. In Alderman Case the right of an assignee of the judgment was upheld against a claim of lien upon the part of the attorney for th......
  • Childers v. U.S. Fidelity & Guaranty Co.
    • United States
    • Supreme Court of Oklahoma
    • 16 Mayo 1961
    ...only took effect from the time of giving their notice to the Aultman & Taylor Company. This Court, however, held in the case of Pirie v. Harkness [3 S.D. 178], 52 N.W.Rep. 581, that the right to a lien and the right of set-off, while legal rights, are dormant until actively asserted, and th......
  • Alexander v. Clarkson
    • United States
    • United States State Supreme Court of Kansas
    • 7 Abril 1917
    ...... cited, and, also, Boyer v. Clark and McCandless, 3. Neb. 161; Lundberg v. Davidson, 68 Minn. 328, 71. N.W. 395, 72 N.W. 71; Pirie et al. v. Harkness, 3. S.D. 178, 52 N.W. 581; Hroch v. Aultman & Taylor. Co., 3 id. 477, 54 N.W. 269; Bartlett v. Pearson, 29 Me. 9; Freem. Judg. ......
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