Nat. Bank of Winterset v. Eyre

McCeaby, C. J. The right of set-off exists under the statute unless it is defeated by the attorneys’ lien, claimed by Wainwright & Miller. Code of Iowa, 1873, § 3097. The statute is declaratory of the common law and of the general principle of equity, according to which mutual judgments will generally be set off the one against the other. 2 Story, Eq. Jur. § 1437. Before, the respondent Eyre obtained his judgment against the bank he was indebted to the bank on a judgment of over $2,800. The bank pleaded this judgment as a set-off against his claim in the suit of Eyre against the bank in this court, but a demurrer to that part of the answer was sustained, upon the ground that mutual judgments are to be set off the one against the other after their rendition. Can the right of set-off be defeated by the filing of an attorney’s lien? I think not. If Eyre had assigned his entire claim before judgment to Wainwright & Miller, and they had sued on it, I think it clear that tho assignment would have been subject to the set-off previously held by the bank. The claim was not negotiable, and the assignees would have taken it subject to any defence existing in the hands of the bank. Surely no greater right can be acquired by the filing of an attorneys’ lien than would have resulted from such an assignment. I think the weight [734] of authority, as well as the better reason, supports the rule that the lien of the attorney is upon the interest of his client in the judgment, and is subject to an existing right of set-off in the other party. Gager v. Watson, 11 Conn. 168; Ex parte Lehman, 59 Ala. 631; Wright v. Treadwell, 14 Texas, 255; Currier v. Railroad Co. 37 N. H. 223; Mohawk Bank v. Burrows, 6 Johns. Ch. 317; Porter v. Lane, 8 Johns. 277; Nicoll v. Nicoll, 16 Wend. 445; Hurst v. Sheets, 21 Iowa, 501. The demurrer to hill is overruled, and unless respondents wish to answer there will be decree in accordance with the prayer of the bill.