Ballinger v. Tarbell

Dillon, J.

I. It is claimed by the defendants, Claggett, Browne & Claggett, that the judgment of the plaintiff against Tarbell & Robertson was wholly void, as against Tarbell, because the justice of the peace, who rendered the same, had no jurisdiction of the person of the defendant Tarbell; and this is the first question which we are called upon to determine. The plaintiff’s action against Tarbell & Robertson was brought before H. H. Wilson, a justice of the peace, and the return day was fixed by the justice for tbe 11th day of February, 1860. The original papers in this action were not before the court, but the transcript shows that the original notice was served by the constable on the 6th day of February, 1860, on the wife of Robertson, and as to Tarbell, the service, as recited in the justice’s transcript, was as follows: “On the 7th day of *493 February, 1860, I, H. H. Wilson, a justice of tbe peace, served the said notice upon John Tarbell, by reading the same to him personally in the city of Keokuk, who confessed judgment;” and on the 11th day of February, 1860, the justice rendered judgment against the defendants, without any appearance by them. That this service, as to Tarbell, was defective, is apparent, because the statute requires five days’ notice, and here were only four. It may also be defective, because served by the justice himself, and not the constable. It was, therefore, clearly erroneous in the justice to have rendered judgment against Tarbell on this service. It would have been, without doubt, reversed on writ of. error, But it was erroneous simply, and not void. It is not a ease where there is no service at all, but a case where there was a defective service. The justice erred in deciding that this service authorized him to render judgment against Tarbell; but neither Tarbell nor his assignees can question the validity of this judgment, or claim to have it treated as void in this collateral proceeding. Bonsall v. Isett, 14 Iowa, 309 ; Cooper v. Sunderland, 3 Id., 114; Morrow v. Weed, 4 Id., 77; Boker v. Chapline, 12 Id., 204.

The plaintiff’s judgment against Tarbell was, therefore, valid, the same never having been set aside or reversed.

II. The next question which arises is, whether the plaintiff has a right, legal or equitable, to have his judgment against Tarbell set off against the judgment in favor of Tarbell, and assigned to Claggett, Browne & Claggett If Tarbell had never made the assignment to C. B. & C., would this alleged right of set-off exist ? The only reason which could be urged against it, even at law, would be, that the plaintiff’s judgment was a joint judgment against Tarbell & Robertson, while the judgment against the plaintiff was in favor of Tarbell alone. But this reason, under our law, as it now stands, no longer exists. The Revision, which was in force when the cause was tried below, abro *494 gates all distinctions between joint and joint and several liabilities: § 2764; and see also §§3328, 2.880, clause 6. Under these various provisions the'plaintiff (Ballinger), when Tarbell brought his action against him, might have pleaded in set-off his prior judgment against Tarbell & Robertson. We say he might have done so, but he was not bound to pursue this course; and his failure to pursue it would not defeat the right if it otherwise existed to have one judgment set off against the other.

We conclude then, that the plaintiff’s right of set-off would exist even at law, as against Tarbell, and the insolvency of Tarbell would only superadd to this right those equitable rights which flow from the debtor’s pecuniary irresponsibility. Hurst v. Sheets, 14 Iowa, 322 . ‘

The next step in our inquiries is, whether this right of the plaintiff, as against Tarbell is defeated by the subsequent assignment by the latter of his judgment against the plaintiff to Claggett, Browne & Claggett, they being Iona fide assignees.

Tarbell was indebted to them for fees, and they allege in their answer, not that they received this assignment in payment for services rendered in obtaining the specific judgment assigned to them, though this might, perhaps, make no difference, but “ for the purpose of obtaining something on their fees, for which Tarbell was indebted to them.” In another portion of the answer they allege that “ they took the said assignment without any fraud, and for the purpose of obtaining fees from said Tarbell,” but it is not alleged that those fees were due on account of the judgment of which they received the assignment. It is admitted that the plaintiff’s judgment was rendered prior to the rendition of the judgment against him, and that Claggett, Browne & Claggett knew of its existence at the time they received their transfer from Tarbell.

A judgment is a chose in action. McGilton v. Love, 13 *495 Ill., 495 , and cases cited. Wise v. Shepherd, Id., 41. The Legislature not having invested judgments with the qualities which attach to commercial paper, they stand upon the footing of things in action. Section 2760 of the Revision of 1860 expressly declares, that “in case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense existing before notice of the assignment.” See also § 2880, clause 6, and § 1796. Since the decision of this cause, by the District Court, the rights of the assignee of a judgment have been settled by this Court in the important case of JBurtis v. Oooh & Sargent, ante, and to which and the authorities there cited, we refer. It is not necessary to renew or enlarge the argument. It must be admitted that there are dicta to the effect, and perhaps decisions which expressly hold, that the right of equitable set-off is defeated by a bona fide assignment of one of the debts. See dictum of Judge Stockton in Davis v. Milburn, 8 Iowa, 170 , upon which the Court below probably acted. But if we are correct in the views above expressed; if the plaintiff’s right of set-off is, under our statute, a legal one, it is clear that this legal right cannot be defeated by the assignment of Tarbell.

Under the statute and the decision of Burtis v. Cook & Sargent, supra, as the plaintiff’s fight was available as against Tarbell, so it is equally available as against his assignees.

If the plaintiff based his right upon some equity outside of the statute, his claim might be met by some countervailing equity in the defendant; and the fact that the judgment assigned to Claggett, Browne & Claggett was obtained by reason of their services, might, if this were a mere contest between equities, be sufficient to deny relief. But not so when the plaintiff relies upon the rights which the statute gives him, and when the statute expressly declares *496 that the assignee takes subject to any set-off or other defense existing before notice of the assignment. It is the opinion of this Court that the decree below dismissing the petition was erroneous, and the same is reversed, and the cause remanded, with directions to the District Court to grant the relief prayed by the plaintiff.

Decree reversed.