Johnson v. Noble
| Decision Date | 08 December 1936 |
| Docket Number | Case Number: 26161 |
| Parties | JOHNSON v. NOBLE |
| Court | Oklahoma Supreme Court |
¶0 1. JUDGMENT - Right to Set Off One Judgment Against Another - Set-Off of Judgment Rendered in Another County and Procured by Assignment.
Where judgment in favor of a plaintiff has become final, and the defendant has procured, by assignment, a judgment formerly rendered in another county against plaintiff, said defendant may invoke the equitable power of the court to set off one judgment against the other, either in an equitable proceeding or upon motion; but the exercise of this power is in a measure discretionary, and the matter must be determined upon strictly equitable principles.
2. SAME - Purchase of Judgment to Use as Set-off.
A judgment debtor may purchase a judgment to use as a set-off if this be done bona fide.
3. SAME - Trial Court's Discretion Held not Abused in Offsetting Judgments.
Plaintiff, J.A. Johnson, procured a judgment in the district court of Oklahoma county against Charles F. Noble and other defendants. The cause was appealed to this court, the judgment affirmed and judgment entered in favor of plaintiff against Charles F. Noble, the Creek Oil Corporation, and the Maryland Casualty Company, as surety on the supersedeas bond of defendants. Subsequent to the rendition of said judgment by this court, the defendant Noble purchased and had assigned to him a judgment previously rendered in Tulsa county against the plaintiff Johnson in favor of certain third parties. Thereafter the trial court permitted said Tulsa county judgment, owned by defendant Noble, to be offset against plaintiff's judgment. Record examined, and held, that the trial court did not abuse its discretion in offsetting said judgments.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action by J.A. Johnson against Alta D. Noble, administratrix of estate of Charles F. Noble, et al.; J.G. Hughes, receiver of First, National Bank of Bristow, intervening. From action of court in permitting set-off of judgments, plaintiff and intervener appeal. Affirmed.
William J. crowe, Twyford & Smith, and George B. Schwabe, for plaintiffs in error.
Randolph, Haver, Shirk & Bridges and McInnis & Ross, for defendants in error.
¶1 This is an appeal by J.A. Johnson, hereinafter referred to as plaintiff, and J.G. Hughes, receiver of the First National Bank of Bristow, Okla., her inafter referred to as intervener, from an order and judgment of the district court of Oklahoma county wherein the court permitted a certain judgment held by Alta D. Noble, administratrix of the estate of Charles F. Noble, deceased, to be set off against a judgment formerly rendered in favor of plaintiff Johnson and against the said Charles F. Noble.
¶2 The action originated in the district court of Oklahoma county, wherein the plaintiff, Johnson, sued Charles F. Noble personally, the Creek Oil Corporation, and other defendants for certain money which had accrued from the operation of an oil well in Creek county in which the plaintiff claimed an interest. The cause was tried and judgment rendered in favor of plaintiff against the defendants Noble and Creek Oil Corporation in the sum of $17,001.50. The cause was appealed to this court, where the judgment of the trial court was modified and affirmed and pursuant to motion filed, judgment was entered in this court on April 15, 1930, in favor of plaintiff against Noble and the Creek Oil Corporation, and the Maryland Casualty Company, surety on the supersedeas bond of appellants in that case, in the sum of $13,724.46, with interest thereon. Noble v. Johnson, 145 Okla. 46, 291 P. 26. Petition for rehearing was denied and the mandate was issued on September 23, 1930, and thereafter was spread of record in the district court of Oklahoma county.
¶3 On August 30, 1930, the defendant Noble purchased and had assigned to him a certain judgment which had been rendered on January 12, 1924, in the district court of Tulsa county in favor of the Oil Well Supply Company and against the plaintiff, Johnson, said judgment being for the sum of $14,722.74, upon which certain payments had been credited and executions issued, leaving due thereon the sum of $9,861.42, with interest at the rate of 8 per cent. per annum from January 12, 1924. Thereafter the defendant Noble by motion sought to obtain an order offsetting one-half of the judgment in favor of plaintiff and against the defendants Noble and the Creek Oil Corporation against the judgment assigned to and owned by the defendant Noble. In this connection it appears that the attorneys for plaintiff Johnson had prosecuted the action upon a contingent fee contract, had perfected their lien and claimed one-half of the proceeds of the judgment and thereafter secured an order requiring the Maryland Casualty Company, as surety on the supersedeas bond, to pay one-half of the proceeds of the judgment to them. We are therefore concerned only with the one-half of the proceeds of the judgment payable to the plaintiff, Johnson.
¶4 On December 2, 1930, pursuant to leave granted, J.G. Hughes, receiver of the First National Bank of Bristow, Okla., filed a plea in intervention wherein it was alleged that on April 28, 1926, the First National Bank of Bristow obtained a judgment against J.A. Johnson (plaintiff herein) upon which there is now due the sum of $9,625.83, with interest; that on April 28, 1930, he caused to be issued out of the district court of Tulsa county a garnishment summons directed to Charles Noble, Creek Oil Corporation, and the Maryland Casualty Company, and that service of said summons was duly made upon each of said garnishees; that on October 24, 1930, he caused to be filed in the district court of Oklahoma county a certified abstract of the judgment theretofore rendered in Tulsa county in favor of said bank. Intervener further alleged that the defendant Noble was advised of the lien and claim of the receiver against the judgment theretofore rendered against them in favor of Johnson, and that when the said Noble took the assignment of the judgment from the Oil Well Supply Company he took the same subject to the rights, claims, and liens of said intervener.
¶5 Issues were joined and the cause proceeded to trial before the court. After the introduction of evidence the court took the matter under advisement. On December 22, 1931, the defendant Charles F. Noble died, and on September 16, 1932, there was filed an order reviving the cause in the name of Alta D. Noble, administratrix of the estate of deceased, On February 23, 1934, there was filed a journal entry of final judgment wherein the court found that defendant Charles F. Noble was the lawful assignee, and bona fide holder of the judgment of the Oil Well Supply Company, and held that the unpaid balance of the judgment rendered in favor of the plaintiff, Johnson, was satisfied by allowing as a set-off thereto the judgment owned by the said Charles F. Noble, deceased.
¶6 An examination of the record discloses, as far as we are able to find, that no evidence was offered by the intervener in support of the allegations of the petition in intervention. Plaintiff and intervener filed a joint motion for a new trial, and after the same was overruled, perfected an appeal to this court by joint petition in error. Said plaintiff and intervener have likewise joined on the briefs. It does not appear that at any stage of the proceedings the plaintiff and intervener occupied adversary positions. The assignments of error presented and argued in the briefs relate only to the propriety of the action of the trial court in offsetting the judgments. No evidence of garnishment proceedings by intervener was introduced, and the recital of...
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... ... In Johnson v. Noble, 179 Okl. 256, 65 P.2d 502, 121 A.L.R. 474, we held on rehearing that where the name of the county clerk and his deputy, by whom the ... ...