Fulkerson v. Davenport

• Decision Date: 31 October 1879
• Citation: 70 Mo. 541
• Parties: FULKERSON, Appellant, v. DAVENPORT.
• Court: Missouri Supreme Court

70 Mo. 541

FULKERSON, Appellant,

v.DAVENPORT.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Johnson Circuit Cour.--HON. F. P. WRIGHT Judge.

AFFIRMED.

Elliott & Jetmore for appellant.

1. Plaintiff Fulkerson is entitled to have his judgments set-off against the judgment against him. Wag. Stat., §§ 3, 4, p. 837; Waterman on Set-off, 365, 395; Simson v. Hart, 14 John. 63; Miller v. Richardson, 1 Mo. 310; Thorndike v. De Wolf, 6 Pick. 120; Drake on Attachment, 572; Field v. Oliver, 43 Mo. 200; Story Eq. Jur., § 1437a; Austin v. Feland, 8 Mo. 309; Kent v. Rogers, 24 Mo. 306; Waterman on Set-off, 235, 242, 250, 334, 385, 396, 365.

2. The justice's judgments are not subject to attack collaterally. Franse v. Owens, 25 Mo. 329; Freeman on Judgments, 521; Fagg v. Clements, 16 Cal. 389; Hahn v. Kelly, 34 Cal. 391; McDonald v. Leewright, 31 Mo. 29; Callen v. Ellison, 13 Ohio St. 446; Wilcox v. Kassick, 2 Mich. 165; Cook v. Darling, 18 Pick. 393; Galni v. Pa 18 Wall. 350.

John J. Cockrell for respondent.

1. SET-OFF IN EQUITY: judgment: insolvency: parties.

NAPTON, J.

The insuperable obstacle to the relief asked in this case is, that Ramsey, the joint owner with defendant of the judgment against plaintiff, is not made a party to the case. Although he has no interest whatever in the controversy between plaintiff and defendant, it is impossible for the court, in his absence, to determine the extent of Davenport's interest. Ramsey has a right to be heard on that question; he is a necessary party to a full investigation of the facts upon which plaintiff's relief depends. The assertion in the bill that defendant is owner of the larger part of the judgment is mere assertion and amounts to nothing without proof, and Ramsey must have an opportunity of being heard on this question.

If the defendant was owner of any part of the judgment, whether larger or smaller, we see no objections to a set-off as far as it goes. And this seems to be the doctrine of courts of equity in England and this country. Vulliamy v. Noble, 3 Merivale 593; Blake v. Langdon, 19 Verm. 485; Ex parte Stephens, 11 Ves. 24; James v. Kynnier, 5 Ves. 108. Judge Redfield, who reviews the cases in Blake v. Langdon, observes that “when the debts are in reality mutual, or to that extent, even when the debt must be apportioned and the party attempting to enforce his claim at law in the name of some other party, but nominally interested, is himself insolvent, a court of equity should and will interpose to prevent the injustice by decreeing the setoff.” It is conceded in the present case that in order to make the debts mutual which we are desired to set off against each other, the debt of Davenport and Ramsey must be apportioned, but this could not be done in a proceeding to which Ramsey was no party.

The case of Simson v. Hart, 14 John. 64, relied on by appellant, is unlike the present in a very important particular. The facts in that case were the converse of those in the present, and they tend to establish the principle upon which courts of equity act, to which we have already adverted. There A, the plaintiff, had a judgment against B & C in an action of assault and battery, and B recovered a judgment against A of the same character. B was insolvent and C was extremely embarrassed, and A asked to have the judgment recovered by him against B & C applied in satisfaction of the judgment recovered by B. This was allowed, and Judge Spencer, of the Supreme Court, observed that “such a state of facts furnished a strong and substantial basis for the interposition of a court of equity, on the ground of meditated fraud. Nothing could be more unjust,” he proceeds to say, “than to leave to the respondent the power of collecting his judgment of the appellant (A) against which, from the insolvent condition of the respendent (B) and the embarrassed state of his father, (C,) the appellant could not indemnify himself by collecting any part of his judgment from them; and although it is difficult to settle the precise extent of the jurisdiction of the court of chancery, one of its acknowledged and salutary attributes consists in the power to put a stop to proceedings injurious or unconscientious. I have no hesitation in saying that chancery had original and rightful jurisdiction of the suit, and was fully authorized by a series of adjudged cases in issuing a perpetual injunction against the respondent's swearing out or executing an execution, upon the appellant's entering satisfaction for so much as the respondent's judgment amounted to, on his judgment. or which would have produced the same result, decreeing that the respondent should acknowledge satisfaction of record upon the like terms.” And the judge further observes: “There is no force in the objection that the judgments are not in the same right; it is well settled, that although the demands, as being joint and several, are not, strictly speaking, due in the same right, yet if the legal or equitable liabilities or claims of many become vested in, or may be urged against one, they may be set-off against separate demands, and vice versa, and in some of the cases this was done without any pretense of insolvency.” And the...