McBride v. Fallon

Sharpstein, J. On the 8th day of February, 1878, the plaintiff recovered a judgment against the defendant, in the District Court of the Twentieth Judicial District, for the sum of $900 damages, and $284.40 costs. Afterwards, on the 19th day of April, 1878, in the same court, the defendant recovered a judgment against the plaintiff for the sum of $345.85. On the 6th day of June, 1878, an execution was issued on the last-named, and levied on the first-named judgment, which was sold under said execution, for $10. The plaintiff in whose favor the [302]judgment so levied upon and sold was entered, moved the court, after said sale, that execution issue thereon. The motion was granted, and from that order this appeal was taken. The judgments were in cross-actions, and one might have been set off against the other, the smaller thereby satisfied in full, the larger to the extent of the smaller, and an execution have issued for the balance.

Neither of the parties, by assigning his judgment to a third party, could have defeated the right of the other to have his judgment so set off. The assignee in that case would “ take the demand cum onere and with the right of set-off still clinging to it.” (Pierce v. Bent, 69 Me. 381.) And if we were to concede, which we do not, that in other cases a judgment could be levied upon and sold under execution, in the manner in which the plaintiff’s judgment was, we should hesitate before holding that in a case of judgments in cross-actions, the larger might be levied on and sold under an execution issued on the smaller for a mere fraction less than one thirtieth of the amount due upon it, and thereby deprive the person having the larger of his entire judgment, and leave the smaller judgment to stand against him, mostly unsatisfied.

We think the right to have one judgment set off against another could not in that way be defeated. The smaller judgment was liable at any time to be swallowed up by the larger one. The holder of the latter could not prevent the holder of the former from having it set off pro tanto against the larger judgment, and the holder of the smaller judgment could not prevent the holder of the larger from having the smaller so set off, and then having execution issue for the balance due on the larger. The rights of the parties in that respect were reciprocal.

We are clearly of the opinion, however, that a judgment cannot, in any case, be levied on and sold under execution as the judgment in this case was.