Taylor v. Williams , 14 Wis. 155 ( 1861 )

By the Court,

Cole, J.

This is an application on the part of Williams, the defendant in error, to have a judgment for costs in this court against him set off against a larger judgment in his favor obtained against Taylor in the circuit court. The application is made upon motion and proper notice to the opposite party.

From the authorities cited in support of the motion, it would seem to be the practice in England to set off one judgment against another even when they are in different courts. Hall vs. Ody, 2 Bos. & Pul., 29; Bridges vs. Smyth, 8 Bing., 29; Bristowe vs. Needham, 7 M. & G., 648. In this country the practice is not uniform. In New York such set-offs are allowed (1 Bur. Prac., 281; Ross vs. Hicks, 11 Barb. (S. C.), 481, and cases there cited); while in Kentucky the practice is disapproved. Tenant's heirs vs. Marmaduke, 5 B. Mon., 76. But even where the practice to set off one judgment against another obtains, such set-off is only allowed when parties are interested in the respective judgments in the same right, and the judgment is conclusive, and the rights of the parties are not doubtful, complicated or intricate, and the application is made in the court where the judgment against the moving party was recovered. Ross vs. Hicks, supra. Upon such conditions and qualifications, the practice may not be open to serious objection. Of course such an application is always addressed to the sound discretion of the court in which it is made, and we should not entertain one where the equities of the case were not clear, or where we should have to enter npon any extended examination to determine the facts of the case, or the rights of the parties. This motion to make the set-off is not serionsly resisted, although the counsel for Taylor suggested that it would be more correct to mate the application in the circuit court where the larger judgment existed. We suppose the de-J fendant in error could only make the motion here where thel judgment was against him, and applying to have the set-off made he will be bound by the order of this court, and musí see to it that the judgment of the circuit court is pro tanto discharged.

The motion is granted, but without costs.