Northwestern & Pacific Hypotheek Bank v. Rauch

SDLLIYAN, J.

— This is an appeal from an order denying appellant’s motion to offset $124.75, the amount of costs recovered by respondents on a former appeal of this case ( 7 Idaho, 152 , 61 Pae. 516), against the judgment of $1,475 obtained by appellant against respondents in this action. The facts are as follows: On a former appeal in this action the respondents, who were defendants, were successful, and costs to the amount of $124.75 were awarded to them. The cause was remanded, and thereafter tried by the court below, and judgment entered against the respondents on the thirteenth day of December, 1900; and on that day counsel for appellant made the motion, above referred to. The record shows that the respondents Andrew Bauch and his wife had assigned in writing, on the third *52 day of July, 1900, the cost-bill, including said costs, to their attorney. The motion was denied, and that action of the court is assigned as error.

Said item of costs sought to he set off against the judgment herein arose in this suit, and may be set off against the judgment obtained herein. Section 4091 of the Revised Statutes of 1887 provides that, in the case of an assignment of a thing in action, the assignment is without prejudice to any setoff or other defense existing at the time of or before notice of the assignment. Said costs were in the nature of a judgment, and under the provisions of section 4913 of the Revised Statutes of 1887 an execution could be issued to collect the same. In Porter v. Liscom, 22 Cal. 430 , 83 Am. Dec. 76 , it is held that an assignee of a judgment, although a purchaser for value and without notice, takes it subject to a right of setoff against the judgment existing at the time of the assignment; and where in the same action two judgments were entered, one for the plaintiff and one for the defendant, it was held that defendant had the right to set off his judgment pro tanto against that of the plaintiff. In the ease at bar the defendants had a judgment against plaintiff for $124.75, and plaintiff re-y covered judgment against them for $1,475, and it was error to refuse to allow a setoff pro tanto. The assignment was made without prejudice to such setoff. (See, also, Tiffany v. Stewart, 60 Iowa, 207 , 14 N. W. 241 ; Way v. Colyer, 54 Minn. 14 , 55 N. W. 744 .

It was error for the court to deny said motion for a setoff, and the action of the court therein is reversed, and Lhe cause remanded, with instructions to grant said motion. Costs of this appeal are awarded to appellant.

Quarles, C. J. and Stockslager, J., concur.