Depoyster Lumber Co. v. Commercial Lumber Co. , 213 Ala. 327 ( 1925 )

Under our statute of set-off and recoupment (section 10172, Code 1923), it has always been held that a debt due to one of several defendants, sued jointly, may be set off against the plaintiff's demand. Huddleston v. Askey, 56 Ala. 218; Riley v. Stallworth, 56 Ala. 481; Bank v. Poelnitz, 61 Ala. 147; Craft v. Craft, 209 Ala. 226, 95 So. 901. That construction of the statute, which has been repeatedly re-enacted without change, must now be adhered to. Moreover, it has been expressly recognized by the provisions of section 5860, Code 1907 (section 10174, Code 1923).

In the instant case, however, the plea of set-off here in question was interposed separately and individually by the defendant to whom the debt was due from the plaintiff, and his codefendant was not joined in the plea. An examination of the reported cases dealing with set-offs of this character shows that the practice has been to plead the individual set-off jointly. But we see no reason why the right of any one defendant to offer such a set-off should be dependent upon the consent or joinder of his codefendant, and we therefore so hold. Whether, in such a case, the set-off will operate in favor of the nonjoining codefendant is a question not now presented.

As to the right of the individual pleader to have a judgment over for the excess of his individual counterclaim, the statute has made affirmative provision. Code 1907, § 5860 (Code 1923, § 10174).

It results that the judgment of the trial court overruling the plaintiff's motion to strike the defendant Demoville's plea 6 was without error, and must be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.