Cleveland v. McCanna
| Citation | 75 N.W. 908,7 N.D. 455 |
| Decision Date | 10 May 1898 |
| Court | United States State Supreme Court of North Dakota |
Appeal from District Court, Grand Forks County; Glaspell, J.
Action by C. T. Cleveland against S. A. McCanna. A motion by defendant to set-off a judgment held by him against plaintiff against the judgment rendered in this action was sustained and plaintiff appeals.
Burke Corbet, for appellant.
Bangs & Fisk, Cochrane & Feetham, and O. A. Wilcox, for respondent.
In March, 1894, the respondent, McCanna, obtained a judgment against the appellant, Cleveland, before the City Justice of the City of Larmore, in Grand Forks County, for the sum of $ 200 and costs amounting in all to $ 235. An abstract of said judgment was duly filed in the office of the Clerk of the District Court of said county, and the judgment was properly entered and docketed in that court, and is still in force and entirely unpaid. On April 24th following, appellant commenced the action against respondent in which this proceeding is entitled, and sought to recover $ 3,000, actual and exemplary damages, for the alleged wrongful and unlawful seizure and conversion by respondent of certain enumerated personal property belonging to appellant, which it was claimed constituted appellant's absolute and alternative exemptions. On the trial of this action, the jury found the value of such personal property to be $ 367.25, and a general verdict was returned for appellant for $ 717; and subsequently judgment was entered thereon, which, with costs and interest, amounted to $ 849.90. This judgment was subsequently reduced by the court to $ 620.74. for which sum it is still in force and unpaid. An execution was issued thereon in January, 1897. Thereupon the respondent applied for and obtained an order on appellant to show cause why the judgment in respondent's favor, and against appellant, should not be set-off pro tanto, against the judgment in favor of appellant, and against respondent. The application for the order was supported by an affidavit setting forth the rendition of the judgments as herein stated. On the return day, the respondent, in support of his motion, introduced the pleadings in both cases and the affidavit on which the order was issued. Appellant introduced testimony showing that the property for the conversion of which he recovered judgment was property that was exempt from seizure or sale under legal process, and also a verified schedule of his property showing that the value of the whole thereof, including the judgment against respondent, was less than the amount exempted by law, and claimed to hold such judgment as exempt from application on his own debts. The court, after a full hearing, granted the motion to set-off and made the proper order therefor. The appeal is from such order.
It is first urged that the judgment rendered by the City Justice of the City of Larimore against appellant was and is a nullity, for the reason that no such officer as a City Justice of the Peace is known or authorized under our constitution and laws. The office of the Justice of the Peace is recognized, and as such, the officer was claiming to act. This contention cannot prevail. It is conceded that such justice was a de facto officer, performing all the functions of a Justice of the Peace. This attack is purely collateral. It is well settled that the validity of the acts of a de facto officer cannot be attacked in a collateral proceeding.
But the second point raised is of more importance. Our statute declares (Revised Codes, section 5499:) "Mutual final judgments may be set-off pro tanto the one against the other by the court upon proper application and notice." Such was the rule in equity, independent of any statute. 22 Am. and Eng. Enc. Law, 446, and cases in note 3. The power is no broader under the statute. But this power will never be exercised where the set-off would deprive a party of his legal rights. 22 Am. & Eng. Enc. Law 448, note 3. It is claimed that the allowance of the set-off in this case would deprive appellant of his legal right to his exemptions. There is a special reason alleged in this case why appellant's judgment against respondent should be protected from such set-off. It is urged that this judgment was obtained for the wrongful conversion of exempt property, and for that reason it stands in lieu of the property, and is equally exempt; and the cases so hold. Crawford v. Carroll, 93 Tenn. 661, 27 S.W 1010; Kaiser v. Seaton, 62 Iowa 463, 17 N.W. 664; Cullen v. Harris, (Mich.) 111 Mich. 20, 69 N.W. 78. But we think that holding more applicable in states where certain specific articles are exempt by statute, as is the case in the states from whence these authorities are cited. In this state, we think, the ruling should be placed upon a broader ground. Our constitution provides, (section 208:) "The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law, and a reasonable amount of personal property; the kind and value shall be fixed by law." In pursuance of this constitutional requirement, our legislature has declared by sections 5516, et seq., Revised Codes, that to each head of a family there shall be exempt from...
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