Simmons v. Reid

• Citation: 31 S.C. 389,9 S.E. 1058
• Parties: Simmons v. Reid.
• Decision Date: 26 July 1889
• Court: United States State Supreme Court of South Carolina

9 S.E. 1058

(31 S.C. 389)

Simmons

v.Reid.

Supreme Court of South Carolina.

July 26, 1889.

Set-Off of Jodoments.

Where a judgment recovered by plaintiff against defendant was assigned to plaintiff's attorney in good faith, in payment for his services in the action, the trial court did not err in refusing to set off against such judgment a judgment recovered by defendant against plaintiff prior to the assignment, but of which the attorney had then no notice.

Appeal from common pleas circuit court of Newberry county; Fraser, Judge. O. L. Schumpert, for appellant.

McIver, J. Simmons having recovered a judgment in a trial justice court for the delivery of a horse and $10 damages, or $80, if the horse be not delivered, and costs, Reid appealed therefrom to the circuit court. The appeal was heard during the regular term for November, 1886, and on the 6th of December, 1886, Judge Fraser delivered his judgment, modifying the judgment appealed from, by reducing the alternative judgment from $80 to $60. It having been discovered that the official term of Judge Fraser had expired before the 6th of December, 1886, and he having been re-elected in the mean time, an extra term of the court was held on the 31st of December, 1886, for the purpose of resigning judgments rendered after his former commission had expired. At the extra term, upon notice, Reid applied to the circuit judge for an order to set off a judgment by confession before a trial justice, entered 24th September, 1883, in favor of Reid v. Simmons, a transcript whereof was filed and entered in the clerk's office on the 28th of December, 1886; but the circuit judge, holding that he could not hear an original motion at an extra term, declined to consider it. At the next regular term, in February, 1887, the application was renewed on notice. In response to this application, Simmons, the plaintiff herein, showed cause (1) that on the 6th of December, 1886, in consideration of professional services rendered herein, the said plaintiff assigned this judgment to his attorney, in pursuance of a prior parol agreement made and entered into at the time of the commencement of the suit in the trial justice court; (2) that subsequently, to-wit, on the 24th of December, 1886, the said attorney, for valuable consideration, assigned said judgment to one Pool, who is now the legal owner thereof, and is not a party to these proceedings; (3) that said assignment was filed with the judgment roll, and lodged with the execution herein, on the 24th of December, 1886; (4) that the judgment by confession before the trial justice now sought to be set off against thejudgment herein is not a valid judgment, and, even if so, it cannot be set off as against third parties purchasing for valuable consideration without notice. The circuit judge refused the motion on the sole ground that the assignment of the judgment herein was sufficient to bar the appellant's right of setoff. From this order the defendant, Eeid, appeals, alleging, in general terms, error in such refusal. Strictly speaking, we might decline to hear this appeal, as there are no specific errors pointed out, nor are there any indications as to where the error alleged lies. But, waiving this, we will proceed to consider the paints made in the argument submitted in behalf of appellant. There can be no doubt that the court of common pleas has jurisdiction, in a proper case, and upon a proper showing, to require a judgment previously obtained by a defendant against a plaintiff to be...