Phillips v. Mackay

• Citation: 23 A. 941,54 N.J.L. 319
• Parties: PHILLIPS v. MACKAY.
• Decision Date: 26 March 1892
• Court: New Jersey Supreme Court

23 A. 941

54 N.J.L. 319

PHILLIPS

v. MACKAY.

Supreme Court of New Jersey.

March 26, 1892.

(Syllabus by the Court.)

John T. Phillips brought suit against Joseph W. MacKay for seducing plaintiff's daughter. The action was dismissed for want of prosecution, and judgment for defendant for his costs. Plaintiff brought another action for the same cause, received a verdict of one cent. and obtained a rule to show cause why a new trial should not be granted, which rule was made absolute, a new trial had, and judgment rendered for plaintiff for $110.05. Defendant moved for leave to set off his judgment against plaintiff's. Plaintiff's attorney claimed a lien on the judgment. Motion to set off denied.

The other facts fully appear in the following statement by Garrison, J.:

John T. Phillips began an action against Joseph W. MacKay in the supreme court of the state of New York for seducing plaintiff's daughter. On the 8th day of June, 1889, tills action was dismissed for want of prosecution, and a judgment rendered in favor of MacKay against Phillips for $141.20 taxed costs, which sura MacKay has paid to his attorney in New York. Phillips brought suit for the same cause of action against MacKay in this court. The cause was tried at the Passaic circuit at the September term, 1890, and a verdict rendered in favor of plaintiff for six cents damages. The attorney of the plaintiff obtained a rule to show cause why a new trial should not be granted upon the ground of the inadequacy of damages. As a necessary part of the prosecution of this rule, the attorney procured a copy of the stenographer's notes of the testimony, for which he paid $27, and caused the case to be printed at an actual cost of $101.50, which he also paid. The rule was made absolute, and a new trial ordered, which resulted in a recovery by the plaintiff of a judgment against the defendant for the sum of $110.05. This judgment does not carry costs in this court. The present application is by the defendant for leave to set off against the judgment in this court the judgment recovered by him against the plaintiff in the state of New York. The attorney of the plaintiff has had his costs taxed as between attorney and client at the sum of $79.89, which, with the disbursements for procuring and printing the testimony, amounts to the sum of $208.09. For this amount the plaintiff's attorney claims to have a lien upon the judgment in this court.

Argued at November term, 1891, before Dixon, Reed, and Garrison, JJ.

Eugene Stevenson, for the motion.

S. B. Ransom, opposed.

GARRISON, J., (after stating the facts.) The power of the court to order one judgment to be set off against another when the judgments are mutually enforceable by the parties is an exercise of the equitable jurisdiction of the court, and will be allowed upon such terms as will promote substantial justice. McAdams v. Ruhdolf, 42 N. J. Law, 332; Brown v. Hendrickson, 39 N. J. Law, 239. The fact that the judgment sought to be set off is in the court of another state, over whose officers and process this court has no control, while it may, in individual cases, militate against ordering the set-off, does not touch the question of jurisdiction. The practice requires that the application be made in the court whose judgment is against the party applying for the set-off, but it has never been required that the court in which the remedy is sought should have control over the judgment used as a set-off. Brookfield v. Hughson, 44 N. J. Law, 285; Schautz v. Kearney, 47 N.J. Law, 56. In the present case, therefore, the mere fact that the defendant's judgment is in the supreme court of New York, does not lead to a denial of his application if in other respects it will be equitable to allow it. Opposition to the defendant's motion comes, however, not from the judgment creditor, but from the attorney who recovered the judgment in this court, who claims a lien thereon for costs and disbursements superior to the defendant's right of set-off.

The question, therefore, is whether the defendant can have his set-off in the face of the lien of the attorney.

An examination of the practice cases in England and in this country shows that each of these so-called "equities" has had the support of precedent and authority. Nor has this diversity existed only between separate jurisdictions, for in some instances courts of the same state, and even judges of the same court, have at the same time enforced diametrically opposite rules upon this subject. In the state of New York, forexample, the supreme court, as early as 1812, held that the attorney's lien did not stand in the way of a set-off between judgments. Porter v. Lane, 8 Johns. 357. This rule was followed by the common-law courts, (Ross v. Dole, 13 Johns. 307; Cooper v. Bigalow. 1 Cow. 206; People v. New York Common Pleas, 13 Wend. 649,) although in Cole v. Grant, 2 Caines, 105, and in Deyon v. Boyer, 3 Johns. 217, a contrary doctrine was applied by the same court while Kent was chief justice. As chancellor, however, Kent laid down the rule to be that "the lien went no further than the clear balance which is the result of the equity between the parties." Bank v. Burrows, 6 Johns. Ch. 317. So that the rule in all the courts of New York was the same until 1829, when Chancellor Walworth reconsidered the point, and held that the attorney's lien should be preferred. Dunkin v. Vandenbergh, 1 Paige, 622, followed by Gridley v. Garrison, 4 Paige, 647. This doctrine was steadfastly adhered to by Chaucellor Walworth, until, in 1836, he was overruled by the court for the correction of errorson appeal in the case of Nicoll v. Nicoll, (McCoon, V. C.,) 2 Edw. Ch. 574, 16 Wend. 446.

The chapter upon this subject in Jones on Liens contains a summary of the courts of this country which allow the set-off and those in which the lien is preferred, and also a list of those jurisdictions in which the matter is now regulated by statute. It is probable that the reason for this contrariety in practice is to be found in the condition of things existing in the courts of England at the time that the practice in this respect was in course of settlement in our courts. It is well known that from the earliest period the court of king's bench favored the attorney's lien, while during the same period the court of common pleas did not recognize any right in the attorney, excepting as to the clear balance resulting after the equitable set-off between the parties. This state of affairs drew from Lord Eldon, presiding in the common pleas in 1799, a remark, which shows his understanding of the practice at that time: ...