Skinker v. Smith

• Decision Date: 08 February 1892
• Citation: Skinker v. Smith, 48 Mo. App. 91 (Mo. App. 1892)
• Parties: C. H. SKINKER, Assignee, Appellant, v. W. SMITH, Respondent.
• Court: Missouri Court of Appeals

48 Mo. App. 91

C. H. SKINKER, Assignee, Appellant,

v.W. SMITH, Respondent.

COURT OF APPEALS OF MISSOURI KANSAS CITY

Decided: February 8, 1892

James G Simpson, for appellant.

(1) The right of set-off did not exist at common law. The statute must give or it does not exist. And the statute being in derogation of common law must be strictly construed. And a party to be entitled to its benefits must be clearly within its provisions. State ex rel. v. Eldridge, 65 Mo. 584; Primm Taylor & Brown v. Ransom, 10 Mo. 444. (2) The parties to the two judgments are not the same. Appellant's judgment is against Smith and Campbell. If executions issued upon these judgments could not have been set off certainly the judgments themselves could not be set off. Yet it is clear from an inspection of the fourth subdivision of section 8171, Revised Statutes, 1889 that executions issued upon these judgments could not have been set off. The right to setoff assigned claims includes only choses in action. R. S. 1889, sec. 8161. A judgment is not a chose in action. The assignment of a judgment vests the title thereto in the assignee as absolutely, and with the same effect, as the sale of a horse passes the title to the purchaser, and the law of set-off has no more application to the one case than to the other. R. S. 1889, sec. 6043. (3) A judgment assigned for value and in good faith cannot be set off. Primm, Taylor & Brown v. Ransom, supra; Ledyard v. Phillips, 24 N. W. Rep. (Mich.) 551; Gallaher v. Pendleton, 7 N. W. Rep. (Iowa) 512; Bill v. Perry, 43 Iowa, 368; Ramsey's Appeal, 27 Am. Dec. 301.

T. G. Rechow and Hamlin & Emerson, for respondent.

(1) From the time of the filing of the transcript in the office of the clerk of the circuit court the same to all intents and purposes becomes a judgment of the circuit court. R. S. 1879, secs. 2998, 2999. "And shall be under the control of the court where the transcript is filed." Sec. 2999, supra. And such judgment has the same force and effect as though originally rendered in the circuit court. Carpenter v. King, 42 Mo. 219; Waddell v Williams, 50 Mo. 216. And the circuit court acquires jurisdiction and may modify the judgment. Bauer v. Bauer, 40 Mo. 61; Babb v. Bruere, 23 Mo. App. 604; Bauer v. Miller, 16 Mo. App. 257. (2) These were cross-judgments between the same parties, and, therefore, the proper subject to set off. Quick v. Durham, 13 W. Rep. (Ind.) 1069. The fact that the plaintiff was also against the security in the appeal bond does not change their character. Appellant took the assignment with full knowledge of defendant's judgment, and, therefore, occupies no better position than would Childers. 2 Black on Judgments, sec. 953, et seq.; Chase v. Woodward, 61 N. H. 79; Hovey v. Morrell, 61 N. H. 9; Hovey v. Morrell, 60 Am. Rep. 315; Simpson v. Hart, 1 Johns. Ch. 91; Ins. Co. v. Power, 3 Paige, Ch. 365;Graves v. Woodberry, 4 Hill (N. Y.) 559; Pierce v. Bent, 69 Me. 381; Hobbs v. Duff, 23 Col. 596; Merrill v. Souther, 6 Dana, 305; McBride v. Fallon, 65 Cal. 301; 2 Black on Judgments, sec. 1002; Waterman on Set-off [1 Ed.] secs. 337, 341, 352.

SMITH, P. J.--Childers commenced two suits against Smith before a justice of the peace, in one of which he recovered judgment against Smith, and in the other Smith on a counterclaim recovered judgment against him. In the former case, Smith appealed to the circuit court where judgment was on April 29, 1889, rendered against him for $ 78. There was no appeal taken by Childers from the judgment of the justice against him and in Smith's favor. On the twenty-third day of April, 1889, Smith filed a transcript of the last-mentioned judgment against Childers, which was for $ 75, in the office of the clerk of the circuit court. Afterwards on the thirtieth day of the same month, Childers assigned to Skinker, on the margin of the record thereof, the judgment of the circuit court against Smith. On May 4, 1889, Smith filed a motion in the circuit court to set off his judgment against that of Childers. This motion was sustained. Afterwards Skinker filed a motion to set aside this judgment and to be made a party, which motion was sustained by the court. The motion of Smith was again heard and sustained, and from the judgment in his favor on the motion, Skinker appeals here.

The question thus presented is whether the transcript judgment in favor of Smith could be set off against the circuit court judgment of Childers, notwithstanding the assignment of the latter to Skinker before the filing of the motion for that purpose.

Before proceeding to consider the question just stated, we may state that it sufficiently appears from the transcript of the proceedings before the justice of the peace in the case in which Smith obtained judgment against Childers on his counterclaim that the justice had jurisdiction and that such judgment is not subject to attack on that account, and especially is this so in view of the statutory provisions in relation to the effect of informalities in the entries required to be made in the docket of a justice of the peace. As to the objection that Childers had no notice of the filing of the motion it is sufficient to say that he appeared thereto, and besides this no such point was in any way made in the court below nor is he complaining of the action here, so that this objection is entirely without force.

The motion was based on section 8168, Revised Statutes, 1889, which provides that, "whenever any circuit court shall render final judgment in causes in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, such court may, whether such judgment be rendered in the same court or not, if required by either party, set off such judgment, the one against the other, and issue execution in favor of the party to whom the balance may be due, and credit such execution with the amount of such set-off." It has been held that the power to set off one judgment against another is an inherent one, and the only equitable powerwhich the common-law courts originally possessed. Chandler v. Drew, 6 N.H. 469. It makes no difference that one of the judgments, as is the case here, is against the principal and his surety on the appeal bond. A judgment in favor of the principal alone may be applied in satisfaction of one against him and his surety. This right exists at common law independent of the statute. Pence v. Bent, 69 Me. 381, and the numerous authorities there cited. And the principle has long been settled in this state in favor of one of several defendants to offset an individual claim against a plaintiff. Kent v. Rogers & Dillon, 24 Mo. 306; Mortland v. Holton, 44 Mo. 58; R. S., sec. 8164. So that there is nothing in the objection that the parties to the two judgments are not the same. This is manifestly a case where there were cross-judgments, and where the parties were consequently reversed. It seems quite clear that, as between Smith and Childers, the judgments were such as could be set off under the statute.

But the further question is whether the assignment of the Childers' judgment to Skinker had the effect to cut off...