Leitz v. Hohman

• Citation: 56 A. 868,207 Pa. 289
• Decision Date: 04 January 1904
• Docket Number: 58
• Parties: Leitz, Appellant, v. Hohman
• Court: United States State Supreme Court of Pennsylvania

56 A. 868

207 Pa. 289

Leitz, Appellant, v. Hohman

No. 58

Supreme Court of Pennsylvania

January 4, 1904

Argued May 20, 1903

Appeal, No. 58, Jan. T., 1903. by plaintiff, from judgment of Superior Court, Oct. T., 1902, No. 91, reversing judgment of C.P. Lancaster Co., Jan. T., 1902, No. 15, discharging rule to set off judgment against judgment in case of William Leitz v. John W. Hohman. Reversed.

Appeal from Superior Court.

The facts appear from the opinion of the Supreme Court and the report in 22 Pa.Super. 1.

Error assigned was the judgment of the Superior Court.

The judgment of the Superior Court is reversed and the order of the common pleas reinstated and affirmed.

J. W Brown and D. McMullen, for appellant. -- The power to set off one judgment against another is permitted only where it will infringe on no other right of equal grade: Higgins v Dunkleberger, 9 Pa. Dist. Rep. 91; Windle v. Moore, 1 Chester Co. Rep. 69; Shoemaker v. Flosser, 5 Kulp, 437.

I. C. Arnold and B. F. Davis, for appellee.

Before MITCHELL, DEAN, FELL, BROWN and POTTER, JJ. Error assigned was the judgment of the Superior Court.

OPINION

MR. CHIEF JUSTICE MITCHELL:

It is settled and unquestionable law that the set-off of one judgment against another is not a legal right even under our defalcation act, but is allowed by the courts under their inherent powers in the administration of justice and is governed by the principles of equity. In Wellock v. Cowan, 16 S. & R. 318, it is said per curiam: "Set-off had no existence at the common law, relief being had only in equity. Since the statute this branch of chancery jurisdiction has not been exercised where relief might be had at law; although for a particular equity not provided for, chancery will go beyond the statute, and allow of what is called an equitable set-off by virtue of its original powers. Courts of common law have long exercised the same powers in setting judgments against each other: a matter not provided for in the statute, and therefore constituting perhaps the only equitable jurisdiction which those courts possess." In Ramsey's Appeal, 2 Watts, 228, Chief Justice GIBSON says: "There is a fallacy in supposing defalcation in a case like the present to be a legal right. Judgments are set against each other not by force of the statute, but by the inherent powers of the courts immemorially exercised. . . . An equitable right of setting off judgments, therefore is permitted only where it will infringe on no other right of equal grade." And in Burns v. Thornburgh, 3 Watts, 78, it is again said, per curiam, the power to set one judgment against another "is not a legal power, nor its exercise demandable of right."

But though the principle in general has been thus clearly and frequently declared, its limits and practical application between the original parties have been little discussed, most of the cases from Jacoby v. Guier, 6S. & R. 448, down to Clement v. Philadelphia, 137 Pa. 328, having arisen on disputes as to the rights of assignees.

Some few rules, or at least presumptions may be gathered from the incidental discussions and applications in the cases. Thus if the judgments are both founded on contract, prima facie the set-off should be allowed, and probably the same presumption should prevail where one or both judgments may be in tort but of a kind, such as damage from negligence, which does not involve the element of wilful injury. But if one judgment is in contract and the other in tort which implies intent to injure, though there is no fixed rule which prevents a set-off, yet the presumption is against it, and the party asking for it, especially if the tort feasor should show some equity in its favor. In such cases, as also where both judgments are in tort, the element of priority in time is generally of importance. And all of these rules and presumptions are subservient to the fundamental principle that...