Porter v. Liscom

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. On the sixteenth day of April, 1861, the County Court of Humboldt County, in a case then pending before it, wherein Allen was plaintiff and Liscom was defendant, rendered a judgment in favor of the plaintiff against the defendant for principal and costs, amounting in all to two hundred and forty-one dollars and fifty-three cents, and in favor of the defendant against the plaintiff for a certain portion of his costs, amounting to two hundred and eight dollars and two cents. On the twenty-fourth day of December, 1861, Allen assigned to one Smiley, “ for thirty dollars or thereabouts, a judgment from twenty-five to five hundred dollars (or perhaps upwards of the latter sum) against Charles Liscom in my favor, rendered in the year 1861 previous to May, by the County Court,” and on the twenty-fourth day of February, 1862, Smiley executed an assignment upon the same paper of “ the above judgment ” for thirty-two dollars to Robert Porter. On the fifth day of September, 1862, the defendant, Liscom, filed a petition in said Court setting forth the above facts, and praying that the judgment in his favor be set off and applied as a credit or payment of the amount thereof upon the judgment in favor of the plaintiff, and that upon the payment by him of the balance, which he offered to do, the judgment against [433]him might be satisfied. Upon the filing of this petition the County-Judge ordered that Allen and Porter be notified to appear and show cause why the set-off should not be made. Porter and Allen appeared to the petition, and after a hearing of the matter the Court ordered the set-off to be made, and as the balance due on the judgment in favor of Allen had been paid into Court, ordered a satisfaction of the judgment to be entered, from which order Porter and Allen appeal to this Court.

The power of a Court to set off one judgment against another upon motion is well established, and this power depends mainly upon the general jurisdiction of the Court over its suitors and process. (Barbour on Set-Off, 32.) And a purchaser and assignee of a judgment, even for a valuable consideration and without notice, takes subject to a right of set-off existing at the time of the assignment, for an assignee takes subject to all equitable as well as legal defenses which can be urged against the assignor. (Graves v. Woodbury, 4 Hill, 559; Cooper v. Bigelow, 1 Cow. 206.) And the fifth section of the Practice Act recognizes the same principle. Even if the paper executed by Allen can be considered as an assignment of this judgment, the assignees took with full notice of the right of set-off in Liseom, for the judgment of the latter was rendered in the same action, and formed part of the same entry with that assigned. The proceeding in this case is a motion founded upon a petition, and not an independent action. The action of the Court in rendering'the judgment in favor of Liseom for costs is founded upon the verdict of the jury, which found one of the issues in his favor. The judgment, therefore, is not void. If the County Court erred in rendering this judgment, the remedy to correct the error was by appeal, but it forms no valid objection to it on this motion to set off the judgment.