Kemp v. McCormick

Murphy, J. This is an action on a promissory note executed by McCormick and one Taylor, and payable to Kemp. A demurrer was filed to the original complaint, which was confessed, and an amended complaint filed, to which defendant McCormick filed a separate answer, setting up the misnomer of the plaintiff and defendant, and also a set-off or counter-claim. Plaintiff filed a motion to strike this answer from the files and for judgment on the complaint as by default, on the ground of being frivolous, sham, irrelevant and presenting no defense. This motion was sustained, and judgment in favor of [423] plaintiff entered by the court below, to which defendants appealed. 1. As to the question of misnomer, raised by the record, we hold that it is sufficient to describe a party to an action by any known and accepted abbreviation of his Christian name, and that the defendant, having signed his name to the note in question with such abbreviation, is now estopped from denying it. 2. As to the question of set-off or counter-claim also raised by the record: Can a claim, due to one of several defendants, be set up as a counter-claim in a suit against such defendants upon a joint debt or liability ? We think not in this instance. The law of set-offs in this Territory is regulated by the 47th section of our civil practice act. Laws of 1867,143. It provides, that the claim to be set off, “shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action,” etc. This is the same as the California statute on the subject of set-off, and in a judicial construction of the same (20 Cal. 281), the converse of the proposition here was there held, where a joint debt was sought to be set off against an individual debt. And upon the same principle an individual debt cannot be set off against a joint debt or liability. The demand sought to be thus set off must be due to all of the defendants, before it can be interposed as a set-off, in the absence of express provisions of the statute to the contrary, unless it should be upon purely equitable grounds, by averment and proof of insolvency, etc., which has not been attempted in this case. There is no error in the action of the court below in striking out the answer and rendering judgment upon the complaint. The judgment is affirmed. Judgment affirmed.