Milner v. Camden Lumber Co.

Riddick, J., (after stating the facts.) The only matter involved in this appeal is a question of costs. It is admitted by plaintiff that under the provisions of our statute the defendant company had the right to set off the judgment it had previously recovered against plaintiff against any judgment which might have been recovered by plaintiff against the company in this action, but plaintiff contends that such judgment could not be used as a counterclaim, so as to prevent him from recovering the costs of this action. Kirby’s Dig. § § 6238, 6239. Our statute provides that where a defendant has a claim that he can use as a setoff against the demand of the plaintiff, and fails to do so, he shall not be allowed to recover costs in any suit which he may afterwards bring on such claims. Kirby’s Digest, § 6104. But that section does not apply to plaintiff, for his demand, being in the nature of a claim for unliquidated damages, could not be used as a set-off in the former action, wherein the defendant recovered a judgment against him for goods and merchandise furnished. There may be room to doubt whether this judgment of the defendant comes within the definition of a counterclaim given by our statutes. But it is unnecessary to discuss that question, for a judgment under our statute may not only be set off against another judgment, but may be used as a set-off against any claim founded on a contract. The language of the statute is that a set-off “must be a cause of action founded on contract or ascertained by the decision of a court.” Kirby’s Dig., § 6101. The judgment set up by thé defendant is a claim ascertained by the decision of a court, and, we think, could be used as a set-off. We think the court properly decided that the judgment cduld be used as a set-off, and the main question is whether the fact .that' such j udgment exceeded the verdict found in favor of plaintiff justified the court in imposing the costs of the action upon him. Now, the defendant did not admit the demand of plaintiff, and ask to have its judgment set off against such demand. It not only pleaded its judgment as a counterclaim, but denied the claim of plaintiff as well. In other words, while denying the claim of plaintiff m toto, it asked that, if anything was found to be due plaintiff, its judgment be set off against such sums. But this denial of the claim of plaintiff was the cause of the trial, and the costs resulting therefrom. There was no controversy about the judgment set up by defendant or the validity thereof. So, the only necessity for a trial at law was to determine whether defendant was liable for any sum on account of the claim of plaintiff. Defendant; by denying any liability on that claim, put plaintiff to the trouble and expense of establishing his demand by a trial at law, and for that reason we are of the opinion that plaintiff is entitled to his costs. The circuit court should have credited, not only the amount of the verdict, but the costs to which plaintiff was entitled, upon the judgment held by defendant against him. The judgment of the circuit court, so far as it refused his costs, will be reversed, and the cause remanded with an order that such costs be credited accordingly. It is so ordered.