Harry v. Williams , 122 Ark. 148 ( 1916 )

McCulloch, C. J.

This controversy arose in the circuit court of Sebastian County, Fort Smith District, by motion of appellee filed in that court to set off, pro tanto, a judgment in his favor, for the recovery of money, against a judgment for a larger amount in favor of appellant. Both judgments were rendered in that court, and on hearing the motion the court allowed the set-off as prayed for in appellee’s motion. When the motion came on to be heard, appellant filed a schedule of his exemptions, claiming as. exempt from seizure under process the judgment .against appellee. In the judgment entry, the court recited its reasons for the decision to be “that the said Cicero Harry is not entitled to claim as exempt against the judgment that said W. T. Williams holds against him, but that the said judgment be set off, they having each grown out of the siame transaction and in the nature of a counter-claim, being debts and credits and the balance due being in favor of the said Cicero Harry, he is entitled only to the amount owing by W. T. Williams to him in excess of what he owes the said W. T. Williams.”

It is contended on behalf of the appellant that the decision of the court was erroneous under the doctrine of this court in Atkinson v. Pittman, 47 Ark. 464, where it was held that a set-off could not be allowed where it prevented one of the judgment debtors from claiming his constitutional exemptions. The statute provides that judgments for the recovery of money “may be set-off against each other, having due regard to the legal and equitable rights of all persons interested in both judgments.” Kirby’s Digest, § 6238. In the case cited above, Pittman ¡recover'd a judgment against Atkinson & Co. .and the latter subsequently purchased a judgment rendered against Pittmian in favor of one Tomlin-son and sought to set-off the judgment thus purchased against the judgment in Pittman’s favor.' This court decided that Pittman was entitled to claim as. exempt his judgment against Atkinson & Co., and that the latter could not deprive him of his constitutional exemptions 'by the purchase of .another judgment.

(1) The facts in the present case, as recited by the trial court in its judgment entry, are different from those in the case just cited, .and do not call for the application of the rule there announced. Here the court found that .appellee’s judgment against appellant was based upon a liability which grew out of the same transaction which formed the basis of appellant’s cause of action against appellee. That being true, appellant never had the right to claim his right of action against .appellee as exempt from appellee’s claim against him, for the simple reason that the two causes of action having grown .out of the same transaction, one extinguished the other pro tanto. In other words, it reduced appellant’s right to recover the amount of his debt 'due from appellee, and never formed a. part of his constitutional exemptions.

(2-3) There was no motion for new trial filed in the case, and therefore wre are not permitted to inquire into the correctness of the court’s decision on the issues of fact. That is a necessary .step before a case can be brought here for review. In Douglass v. Flynn, 43 Ark. 398, this court said: ‘ ‘ Error of law in giving or refusing instructions to a jury is good ground for a motion for a new trial. So, also, ;any error .of law announced by a judge in trying law and fact, which bears upon the finding of the facts, would be. But error of law announced as the basis of a judgment, or decree, upon given facts, found or admitted, would not be remedied by a new trial. Parties are not required in such cases to importune judges for a re-consideration. If the error appears in the record it is sufficiently questioned by appeal. ’ ’ A motion for a new-trial is necessary where a case has been disposed of on ‘tan issue of fact after a verdict by a jury or a decision by the court.” Kirby’s Digest, § 6215. This applies to all trials at law. School District v. School District, 64 Ark. 483; Hare v. Shaw, 84 Ark. 32.

Judgment affirmed.