Hudson v. Kline

• Decision Date: 03 September 1852
• Parties: HUDSON v. KLINE.
• Court: Virginia Supreme Court

50 Va. 379

HUDSON v. KLINE.

Supreme Court of Appeals of Virginia.

September 3, 1852

1. In an action at law the defendant is prevented by unavoidable accident from setting up offsets which he held against the plaintiff, these offsets being in no way connected with the debts sued upon. He has however a plain remedy at law for the recovery of his claims. HELD: He is not entitled to enjoin the judgment and set up his offsets against it, but must pursue his remedy at law for their recovery.

2. If the claims which he holds against the plaintiff at law, are only recoverable in equity, still he is not entitled to enjoin the judgment, and to have them set off against it.

3. If a bill does not state a case proper for relief in equity, the court will dismiss it at the hearing, though no objection has been taken to the jurisdiction by the defendant in his pleadings.

4. The disregard by a Circuit court of a rule adopted by itself for the regulation of the practice there, is not a ground of appeal.

This was a bill in the Circuit court of Kanawha, by Robert F Hudson, to enjoin two judgments recovered against himself and two others as his sureties, by Daniel H. Kline. The bill charged that Kline had sued the plaintiff and his sureties in two bonds executed by them to him, one for 800 dollars and the other for 1200 dollars. That Kline was largely indebted to the plaintiff on several different accounts, which he sets out in the bill, one of which was for a quantity of metal furnished to Morris & Co., upon the undertaking of Kline to pay for it, to the amount of 2139 dollars 61 cents. That the plaintiff, about the commencement of the term at which Kline recovered his judgements, went to the court-house and employed counsel to defend the suits, and set off his claims against the bonds so far as they were legal offsets. That he had spoken to counsel and was to meet him the next morning for the purpose of preparing his defence; but that on that night he was taken very ill at the hotel where he lodged, so much so as to confine him to his bed and render him wholly unfit for business. That his illness continued to increase which made it necessary that he should be taken home, where he had been confined to his bed ever since. That his counsel had asked for a continuance of the causes on the ground of plaintiff's illness, and his consequent inability to prepare his case and get ready for trial; but the application was opposed by Kline and rejected by the court.

Kline answered the bill, denying his liability to the plaintiff on the grounds stated in the bill.

The cause came on in November 1851, on a motion to dissolve the injunction, when the same was dissolved, without prejudice to any rights or remedies at law or ordinary relief in equity to which the plaintiff might be entitled for and on account of any of the matters set forth in his bill. From this decree Hudson applied to this court for an appeal, which was allowed.

Parks and Price, for the appellant.

Fry, for the appellee.

OPINION

MONCURE, J.

The question first presented for our decision in this case is, whether a court of equity had jurisdiction to enjoin the judgments obtained at law by the appellee against the appellant and his father and brother, on the grounds stated in the bill.

The claims asserted in the bill as setoffs to the judgments being independent of and unconnected with the claims on which the judgments were obtained would not at common law have been good setoffs in a suit at law upon the latter; and not being mutual, (the former being separate and the latter joint,) would not, in such a suit, have been good setoffs under the statute of setoff which was in existence when the new Code took effect. Nor would they have been good setoffs in equity, either before or since the said statute, unless upon the ground of the intervention of some peculiar equity, such as the insolvency of the party against whom they were asserted. Story's Eq. Jur., § 1434, 1437; Gilliat v. Lynch, 2 Leigh 493, and cases cited by Judge Green, p. 504, 5. But by the new Code, p. 654, § 4, it is provided, that " although the claim of the plaintiff be jointly against several persons, and the setoff is of a debt not to all, but only to a part of them, this section shall extend to such setoff, if it appear that the persons against whom such claim is stand in the relation of principal and surety, and the person entitled to the setoff is the principal." Under this provision the claims asserted in the bill, or most of them, would have been good setoffs in the suits at law in which the judgments were obtained, and which were instituted after the Code took effect. But the appellant alleges in his bill that he was prevented by unavoidable accident from pleading his setoffs at law, and therefore seeks to have the benefit of them in equity. The allegation is not denied in the answer, and, on a motion to dissolve, must be taken to be true. All or nearly all the claims asserted as setoffs in the bill, if well founded, are recoverable by action at law; and such as may not be are recoverable by suit in equity. It was said, in the petition for the appeal and the argument of the case, that if the appellant be left to his remedy at law, the statute of limitations will be a bar to his claims. Without meaning to admit that the fact, if so, would make any difference, it is sufficient to say that the fact in this case appears to be otherwise. All the said claims, except that for the metal furnished William Morris & Co., arose within five years before the judgments were rendered; and though some of the items of the account for metal bear date a few months more than five years before, yet it is expressly averred in the bill that the metal was sold on a credit of 12 and 18 months, which would make the account due and the cause of action thereon accrue within five years before the judgments were obtained. It is not alleged in the bill that the appellee is insolvent, but the fact appears to be otherwise. Nor is the intervention of any other circumstance alleged as ground for equitable interposition than the accident before mentioned.

The only question, therefore, is whether the appellant, having a plain remedy at law, or in equity, for the recovery of his claims if well founded, can have the appellee's judgments enjoined until the said claims can be established in order that they may be set off against the said judgments, merely upon the ground that the appellant was prevented by accident from pleading the claims as setoffs at law. We are of opinion that he cannot. The statutes of setoff, " having been passed for the benefit of defendants, are not compulsory; but a defendant may waive his right of setoff, and bring a cross action for the debt due to him from the plaintiff." Babington on Setoff, p. 3, 6 Law Libr. The same author says, that " where the defendant, at the time of pleading, is not prepared to prove his cross demand, it is not prudent for him either to plead or give notice of setoff; for if, at the trial, he should attempt to prove his cross demand and fail in doing so, he cannot afterwards maintain an action for the amount." Id.

When a defendant is prevented by accident, surprise or other cause from proving his setoff, the practice is to withdraw it in order that the judgment may not be a bar to an action for the amount. And a defendant who, under such circumstances, should suffer a judgment to be obtained against him without withdrawing his setoff, would no more be entitled to relief in equity against the judgment on the ground of accident or surprise, than a plaintiff would be entitled to like relief on a like ground, who failed to suffer a nonsuit. Suppose a defendant fails to plead his setoff, or having pleaded withdraws because he cannot prove it; and after judgment rendered against him discovers evidence sufficient to sustain his claim, which he could not by reasonable diligence have discovered before, would a court of equity enjoin the judgment until he could establish his claim in order that it might be set off against the judgment? Would he not, on the contrary, have to resort to his action at law for the recovery of his claim? And does not the same principle apply to this case? The appellee has been in no default. He has had no agency, fraudulent or otherwise, in preventing the appellant from pleading the setoffs at law. If he had had, that would probably have been a good ground for a court of equity to interpose and enjoin the judgments, until the cross demands could be established and set off against them. But h...