Feld & Silverberg v. Coleman

• Decision Date: 29 April 1895
• Citation: 72 Miss. 545,17 So. 378
• Parties: FELD & SILVERBERG ET AL. v. S. R. COLEMAN ET AL
• Court: Mississippi Supreme Court

17 So. 378

72 Miss. 545

FELD & SILVERBERG ET AL. v. S. R. COLEMAN ET AL

Supreme Court of Mississippi

April 29, 1895

March 1895

FROM the chancery court of Leflore county, HON. H. C. CONN Chancellor, presiding by interchange.

The opinion states the case.

Decree reversed and demurrer overruled.

Rush &amp Gardner, for appellants.

If execution had been issued on the Portwood judgment before the claim of Feld & Silverberg was barred, the case would be parallel with Posey v. Maddox, 65 Miss. 193, which settles the right of plaintiff to use his claim in equity as a set-off against the judgment of defendant in attachment. The account, having been held at the time the inquiry for damages was made, was a proper offset to the judgment, and could be so used in chancery, even though it had afterwards become barred. Code 1892, § 2756a. Code 1880, § 2687.

Miller Smith & Hirsh, on the same side.

S. R. Coleman, for appellees.

This case differs from Posey v. Maddox, 65 Miss. 193. In that case the assignee of the judgment for damages in the attachment gave no time to attaching creditors to reduce to judgment their claim, which had been dismissed, and they had to resort to a court of equity to establish their claim. Here the assignees of the judgment for damages wait to see if any claim exists, and, when the law says there is none, they seek to enforce their judgment. Appellants cannot set up their claim in violation of the statute of limitations. 1 Pom. Eq. Jur., §§ 418, 419. Complainants must use diligence, Ib., § 1361; 3 Wait Ac. and Def., §§ 180, 472; Freeman on Judgments, §§ 502, 503. There is no mutuality, and, besides, the statute as to set-off does not apply to judgments. Holly v. Cook, 590.

OPINION

COOPER, C. J.

The appellants brought suit by attachment against one Portwood to recover a debt he owed them of $ 371.52. On the plea of the defendant traversing the grounds of attachment alleged by the plaintiffs, the jury found that the attachment had been unlawfully issued, and awarded damages to the defendant of $ 369.05, on which verdict a judgment was rendered against the plaintiffs and the surety upon their attachment bond, and their suit was dismissed. The appellants' claim against Portwood is now barred by limitation; he is insolvent, and has transferred and assigned the judgment he recovered against them to the appellees, Coleman & Barry, who have sued out an execution thereon.

The bill in this cause was filed by the appellants to enjoin the execution, and to obtain a decree setting off their demand on Portwood against the judgment, and thus satisfying the same. The bill avers that Coleman & Barry well knew, when they accepted the assignment of the judgment, that the complainants held this demand against Portwood as a set-off; and that the assignment was made by him for the purpose of defrauding complainants, which fact Coleman & Barry well knew. The defendants demurred to the bill, and, the demurrer having been sustained and their bill dismissed, the complainants appeal.

Unless the complainants' rights are affected by the fact that their demand is now barred by limitations, the case made by their bill entitled them to the relief prayed. Posey v. Maddox, 65 Miss. 193, 3 So. 460.

By our statute of limitation, code 1899, § 2756a, it is declared: "All the provisions of this chapter shall apply to the case of any debt or demand on contract alleged by way of set-off on the part of a defendant; and the time of limitation of such debt or demand shall be computed in like manner as if an action had been commenced therefor at the time when the plaintiff's action...