Turnage v. Riley

• Decision Date: 28 January 1935
• Docket Number: 31549
• Citation: 158 So. 785,172 Miss. 83
• Court: Mississippi Supreme Court
• Parties: TURNAGE et al. v. RILEY et al

158 So. 785

172 Miss. 83

TURNAGE et al. v. RILEY et al

No. 31549

Supreme Court of Mississippi

January 28, 1935

Division B

Suggestion Of Error overruled February 25, 1935.

APPEAL from the chancery court of Lawrence county HON. T. PRICE DALE, Chancellor.

Bill for injunction by Jefferson D. Riley and others against Bessie Turnage and others. From an unsatisfactory decree defendants appeal. Reversed, and bill dismissed.

Reversed and dismissed.

G. Wood Magee, of Monticello, for appellants.

The record in the instant case shows that the identical question involved here was presented to, and was decided by the circuit court of Lawrence county at its October Term, 1931.

The evidence to sustain the issue in the chancery court would be no different from that required to sustain the issue in the circuit court, and this is the test.

Miller v. Buckley, 85 Miss. 706; Green v. Bank, 73 Miss. 342; Hardy v. O'Pry, 102 Miss. 197; Alexander et al. v. Woods et al., 115 Miss. 164.

Where the pleadings in a case present issues which were or might have been litigated therein, as well as those actually litigated, they are res judicata. And if the court in the first case through inadvertence or mistake, failed to pass on the question, it becomes res judicata, nevertheless.

Harrison v. Turner, 116 Miss. 550; Stroud v. I. C. R. R. Co., 73 Miss. 446; Fisher v. Browning, 107 Miss. 729; Cotton v. Walker, 164 Miss. 208; Fair v. Dickinson, 144 So. 238; Love v. Yazoo City, 138 So. 600; Darrow v. Moore, 142 So. 447.

The setting off of the one judgment against another is not a legal right, as such, but as a matter of grace, and the question as to whether a judgment should be set-off against another rests in the sound discretion of the court to which the application is made.

15 R. C. L. 820, secs. 287, 288, 289; 15 R. C. L. 823, sec. 292; 24 R. C. L. 818, sec. 25.

The right to set-off one judgment against another does not grow out of or depend upon any statute, but is a common law right.

Holly v. Cook, 70 Miss. 590; Turner v. McAdory, 58 Miss. 27.

A judgment lien never attaches to a chose in action.

Bank of Monticello v. L. D. Powell Co., 130 So. 292; Bryan v. Henderson Hardware Company, 107 Miss. 255.

Our anti-commercial statute does not apply in a case like this.

Holly v. Cook, 70 Miss. 590.

The suit wherein the Daughdrills recovered their judgment against Riley, and the sureties on his bond, was a replevin suit which Riley caused to be commenced against them, and was, of course, ex delicto in character.

Quarles v. Hutcherson, 139 Miss. 356.

And no set-off is ever available to either party in a suit for unliquidated damages.

Burrus v. Gordon, 57 Miss. 93; Harris v. Oil Mill, 78 Miss. 603.

All the authorities which I have been able to find are to the effect that allowing one judgment to be set-off against another is a matter that rests in the sound discretion of the court, and that when a judgment has been assigned in good faith and for value, set-off cannot be allowed.

Pigford Grocery Co. v. Wilder, 116 Miss. 233; 15 R. C. L. 923, secs. 291, 292; Simmons v. Reid, 17 Am. St. Rep. 36; DeComb v. Thomson, 70 Am. St. Rep. 570; Hovey v. Morrill, 60 Am. R. 315; Ramsey's Appeal, 27 Am. Dec. 301; Groves v. Woodbury, 40 Amer. Del. 296; Sec. 3104, Miss. 1930 Code.

The provisions of the section 3104, Mississippi Code 1930, amply takes care of the interest of claimants, Nell and Bessie Turnage, in the case.

E. B. & H. J. Patterson, of Monticello, and R. T. Hilton, of Jackson, for appellees.

This is clearly a case in which the lower court had before it all the facts and the witnesses and decided the issues on the facts in favor of the appellees.

Handelman's Chain Stores et al. v. Leon Levy, 157 So. 527; Austin v. Smith et al., 152 So. 844.

It is well settled in our state that equity will restrain the execution of a judgment when the judgment defendant has a debt against the judgment creditor which equals or exceeds that judgment and which the judgment debtor cannot otherwise collect.

Bettman-Dunlap Co. v. Gertz, 116 So. 299; Wright v. Salisbury, 46 Mo. 26.

We take it that there could be no controversy on the law being that the assignees of the Daughdrill judgment against Riley took it subject to equities, especially when they knew that Riley had a judgment against the assignors, and that the assignors were not solvent.

Black on Judgments (2 Ed.), sec. 953, page 1510; Duke v. Clark, 58 Miss. 465; Cox v. Palmer, 60 Miss. 793.

In the case at bar the services had been rendered in the justice court and in the circuit court and the assignment stated that it was its purpose to pay the attorneys' fees and to pay for cattle, and could therefore be nothing more than an assignment of a judgment subject to the equities existing against it.

34 C. J. 467, secs. 734, 735b; 84 A.L.R. 1162; 51 A.L.R. 1278; Rachels v. Russell, 154 Ark. 418, 242. S.W. 809.

A set-off may be allowed in equity although pleaded in an action at law but not prosecuted to judgment.

Wright v. Salisbury, 46 Mo. 26.

Argued orally by G. Wood Magee, for appellant, and by R. T. Hilton, for appellee.

OPINION

Ethridge, P. J.

Jefferson D. Riley, E. C. Myers, substituted trustee, and Ovie L. Berry, filed a bill in the chancery court of Lawrence county for an injunction against Bessie and Nell Turnage, minors, G. Wood Magee, and Willard Bourn, sheriff, alleging that, on October 24, 1931, the said Jefferson D. Riley was doing business as F. L. Riley Mercantile Company, and recovered a judgment for the sum of five hundred thirty-two dollars and sixty-two cents and costs amounting to thirty-six dollars against Mr. and Mrs. H. L. Daughdrill in said court, and that said judgment was duly enrolled. It was further charged that E. C. Myers, substituted trustee for and on behalf of Jefferson D. Riley, replevied certain personal property from Mr. and Mrs. H. L. Daughdrill by virtue of a deed of trust held by said Riley. It was also alleged that, at the same time, a judgment was rendered in favor of Mr. and Mrs. H. L. Daughdrill for damages and the value of certain cattle replevied by said trustee, in the sum of five hundred two dollars and forty cents and seventy-five dollars and sixty-five cents costs, against said Jefferson D. Riley, E. C. Myers, and Ovie L. Berry, and that they appealed therefrom to the Supreme Court, which reversed the judgment and entered one reducing the amount thereof. See Myers et al. v. Daughdrill, 163 Miss. 298, 141 So. 583.

It was further alleged that on October 30, 1931, there was an assignment from Mr. and Mrs. H. L. Daughdrill to Bessie and Nell Turnage and G. Wood Magee, attorney, of the proceeds of any judgment to be obtained by Mr. and Mrs. Daughdrill in the suit of E. C. Myers, substituted trustee, et al. v. Mrs. H. L. Daughdrill et al. At the time this assignment was made, the case was being tried and the circuit judge had announced his intention of giving a peremptory instruction in favor of the defendant and against Myers, Riley, and Berry, and the cause proceeded with the evidence as to the value of the cattle and the damages to be awarded. The assignment was made at the noon recess, and the trial ended about 5 P. M. The assignment was filed with the papers in the cause.

After rendering this judgment against Myers, Riley, and Berry, they filed a motion to have the judgment offset against the one in favor of Jefferson D. Riley against Mr. and Mrs. H. L. Daughdrill. The motion was taken under advisement by the circuit judge, but the final ruling thereon is not contained in the record, and it is stated that it could not be found.

The defendants in the case at bar filed as part of their answer a copy of the motion to offset the judgment in the circuit court, and of the assignment of errors on the appeal to the Supreme Court, and also filed as part of their answer, a portion of the brief of the appellant arguing same, and pleaded res adjudicata.

It was shown in the evidence that the cattle involved in the replevin suit and for which damages were sought and recovered against Myers, Riley, and Berry belonged to Bessie and Nell Turnage. There was no proof to the contrary, except it is contended that the judgment rendered in favor of Mr. and Mrs. H. L. Daughdrill conclusively adjudged the title thereof to be in them.

The chancellor, on the final hearing in this cause, rendered an opinion which he made a part of his decree, holding that the assignment was without...