Edgerton v. Johnson
| Decision Date | 16 October 1940 |
| Docket Number | No. 244.,244. |
| Citation | 218 N.C. 300,10 S.E.2d. 918 |
| Parties | EDGERTON. v. JOHNSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; C. Everett Thompson, Judge.
Motion by J. M. Edgerton against R. D. Johnson to offset defendant's judgment against plaintiff with judgment subsequently obtained by plaintiff against defendant, and for restraint of execution until the rights of the parties can be determined. From an order dismissing the motion, plaintiff appeals.
Affirmed.
Motion to offset defendant's judgment with judgment subsequently obtained by plaintiff, and for restraint of execution until the rights of the parties can be deter-mined.
The defendant holds a judgment against the plaintiff in this cause for $385 which was recovered on a counterclaim for breach of warranty at the October Term, 1939. Wayne Superior Court, and affirmed on appeal. Edgerton v. Johnson, 217 N.C. 314, 7 S.E.2d 535. Judgment on the certificate was entered in the Superior Court at the April Term, 1940.
The plaintiff holds a judgment against the defendant for $316.47 which he recovered in an action on a promissory note on 9 May, 1940, in the County Court of Wayne County.
Plaintiff alleges that the defendant is insolvent, and, for this reason, prays for a cancellation, pro tanto, of the defendant's judgment to the amount of the judgment held by plaintiff against the defendant as the only practical means of fairly adjusting their differences.
The defendant admits that the plaintiff obtained a judgment in the County Court of Wayne County, as he alleges, but avers that an appeal was taken therefrom to the Superior Court of Wayne (presumably now pending).
The defendant further demands that the judgment rendered herein be allotted to him as his personal property exemption which he claims under the Constitution.
The court being of opinion that the defendant was entitled to have his judgment exempted from sale under execution, dismissed the motion. From this ruling the plaintiff appeals, assigning error.
Royall, Gosney & Smith and James Glenn, all of Goldsboro, for plaintiff-appellant.
Abell & Sheparci, of Smithfield, for defendant-appellee.
The procedure here adopted finds support in the case of Hogan v. Kirkland, 64 N.C. 250. There a similar motion was made and allowed in the absence of a claim of exemption from sale under execution, such as the defendant is making here. This is the only essential difference between the two cases. It was intimated in the Hogan case, however, that this difference might be vital. And so it is, because the motion has the same effect as an execution. It amounts to "final process" within the meaning of Art. X, sec. 1, of the Constitution, which provides that the personal property of any resident of this State, to the value of $500, to be selected by such resident, "shall be and is hereby exempted from sale under execution or other final process of any court, issued for the collection of any debt." Curlee v. Thomas, 74 N.C. 51; Smith v. McMillan, 84 N.C. 593.
Epitomizing the decisions on the subject, it is said in Mcintosh on Procedure, page 876: "Where the plaintiff recovers a judgment against the defendant, and the defendant later recovers a judgment against the plaintiff in a different action, each has the right to have his judgment considered in...
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