Harman v. Harman

• Citation: 196 S.E. 361
• Decision Date: 24 May 1938
• Docket Number: C. C. No. 588.
• Court: West Virginia Supreme Court
• Parties: HARMAN . v. HARMAN.

196 S.E. 361

HARMAN .
v.
HARMAN.

C. C. No. 588.

Supreme Court of Appeals of West Virginia.

May 24, 1938.

[196 S.E. 362]Syllabus by the Court

1. Accrued alimony is assignable.

2. In an action on a note, the payor may off-set against it accrued alimony assigned to him by the divorced wife of the plaintiff.

Case certified from Circuit Court, Tucker County.

Action by Eugene Harman against Jason Harman on a note, wherein the defendant filed a plea setting up an assignment to him of past-due alimony decreed to divorced wife of plaintiff. The circuit court sustained a demurrer to the plea and certified its sufficiency to the Supreme Court of Appeals.

Ruling reversed.

R. D. Heironimus, of Davis, for plaintiff.

W. K. Pritt, of Parsons, for defendant.

HATCHER, Judge.

In an action on a note, the payor filed a plea setting up an assignment to him of past due alimony decreed to the divorced wife of the plaintiff. The circuit court sustained a demurrer to the plea and certified here its sufficiency.

Under Code, 56-5-4, the defendant, in a suit for any debt, may have allowed against it "any * * ** set-off which is so described in his plea * * * as to give the plaintiff notice of its nature." The statute itself does not define the nature of a set-off; but the decisions agree that the set-off "must be also substantially a debt." Baltimore & O. R. Co. v. Jameson, 13 W.Va. 833, 842, 31 Am.Rep. 775. Accrued alimony becomes a liquidated debt, and as such is a proper subject of set-off under the statute. Fournier v. Clutton, 146 Mich. 298, 109 N.W. 425, 7 L.R.A., N.S., 179, 117 Am.St.Rep. 638, 10 Ann.Cas. 392, is cited as a leading case supporting the doctrine that alimony is not assignable; Cederberg v. Gunstrdm, 193 Minn. 421, 258 N, W. 574, 97 A.L.R. 207, as a leading case opposing it. The cases pro and con are listed in an annotation, 97 A.L.R. 208. In view of our own practice, however, we deem a discussion of those cases unnecessary.

When installments of alimony ac-crue, the power of the court, under Code, 48-2-15, to alter, control or cancel them terminates (no fraud appearing), and "the right thereto of the payee becomes vested." Biggs v. Biggs, 117 W.Va. 471, 474, 185 S.E. 857, 858. When this occurs, Code, 38-3-1, imparts to the decree awarding the alimony the effect of a judgment for the installments. Goff v. Goff, 60 W.Va. 9, 22, 53 S.E. 769, 9 Ann.Cas. 1083; Smith v. Smith, 81 W.Va. 761, 95 S.E. 199, 8 A. L.R. 1149. Such a vested right may be assigned. 2 A. and E. Ency, of...