Franks v. Edinberg

• Decision Date: 24 February 1904
• Citation: 69 N.E. 1058,185 Mass. 49
• Parties: FRANKS v. EDINBERG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 49

69 N.E. 1058

FRANKS v. EDINBERG.

Supreme Judicial Court of Massachusetts, Worcester.

February 24, 1904

COUNSEL

Rockwood Hoar and Simon G. Friedman, for appellant.

Geo. S Taft, Ernest I. Morgan, and Ralph A. Stewart, for appellee.

OPINION

HAMMOND J.

Courts have the power at common law to set off judgments. This power is said to be vested in them 'by virtue of their superintendence of all legal proceedings before them,' and its exercise is at the discretion of the court. Makepeace v. Coates, 8 Mass. 451; Ames v Bates, 119 Mass. 397. But there are certain statutory provisions with reference to suits between a nonresident plaintiff and a resident defendant, and the question is whether the resident defendant is entitled to a set-off of judgments in a case like the one now before us.

By the original act giving to a resident citizen a special right to bring a cross-action when sued by a nonresident, it is provided that, when each of the parties 'shall have obtained judgment against the other, upon the application of either party to the court which rendered such judgment against him or them, the said court is authorized and directed to offset the said judgments (excepting the taxable costs) against each other, and to cancel them so far as to leave only the balance of the largest judgment to be executed.' The right given by this statute was absolute. The commissioners upon the Revised Statutes found this law still existing, and they dealt with the subject by reporting in chapter 90 of the revision three sections, as follows:

'Sec. 44. When an action is brought in this state by any person who is not an inhabitant thereof, or who cannot be found therein to be served with process, he shall be held to answer to any action brought against him here by the defendant in the first action: provided that the demand in the two cases be of such a nature that the judgment or execution in the one case can be lawfully set off against the judgment or execution in the other.

'Sec. 45. If there are several defendants in the original action, each of them shall be authorized to bring such cross action against the original plaintiff, and upon recovering judgment therein, he may, in the discretion of the court, be allowed to set off his judgment against that which may be recovered against himself and his co-defendants, in like manner as if the latter judgment had been against himself alone.'

Section 47, which is new, provides for continuances of the cases so as to enable the absent party to defend the action against him, and to enable either party to set off his judgment or execution against that which shall be recovered against him.

The legislative committee to whom the report of the commissioners was referred suggested no amendment to these sections, but the second section was amended by the Legislature by striking out the words 'in the discretion of the court,' and as thus amended, the sections were enacted as Rev. St. 1836, c. 90, §§ 49, 50, 52, and ever since have been in force. Gen. St. 1860, c. 126, §§ 2, 3, 5; Pub. St. 1882, c. 164, §§ 2, 3, 5; Rev. Laws, c. 170, §§ 2, 4. It is plain from the remarks of the commissioners concerning these sections that they did not intend to change the law then existing by virtue of St. 1823, c. 118, or that the contrast in sections 49 and 50 should be between two different cases of permissive set-off, at the discretion of the court, but, on the contrary, they intended the contrast in those sections to be between the case where the defendant in the original action is the plaintiff in the cross-action, on the one hand, and, on the other hand, the case where there are several defendants in the original action, and one or more cross-actions are brought by them, and that in the first case the right to set-off should be absolute, and in the second it should be at the discretion of the court. While it is true that in the interpretation of a statute the question is not what was the meaning or intention of the...