Welsher v. Libby

Dodge, J. The policy of courts to set off mutual judgments held in the same rights between the same parties is. well established in the absence of countervailing rights or equities, as recognized in Taylor v. Williams, 14 Wis. 155; Bosworth v. Tallman, 66 Wis. 533; Lundgreen v. Stratton, 79 Wis. 227; Gauche v. Milbrath, 105 Wis. 355. In the present case the personal ownership of a judgment in this court in favor of the plaintiff, and the existence of a larger judgment in favor of defendant in the circuit court, is made to* appear. It is not suggested by plaintiff that any third persons, attorneys or otherwise, have acquired rights or have any equities in either of those judgments to be disturbed by offsetting them. The only objections offered are: first, that, the judgment in favor of the defendant in the circuit court was inequitable and unjust; and, secondly, that the plaintiff has commenced another suit for a larger amount against, defendant. The first objection is readily disposed of by the consideration that the judgment in favor of defendant must, be given conclusive effect, it not having been appealed from nor attacked, and having attained an age precluding its. modification by either method. The latter is not an objection, for, even though plaintiff should recover in that action,, the offset now requested would serve only to diminish the-judgment held by defendant, which would doubtless be at [49] proper offset or counterclaim against such demand as the plaintiff holds. We therefore think this is a proper case in which to apply the one demand agai'nst the other. Where the judgments are in different courts, all difficulty in accomplishing the practical result is obviated if, as in the present instance, the party desiring the setoff makes his application in the court where the judgment exists against him; for the court can then make its action in satisfying, either in whole or in part, its own judgment, conditioned upon such applicant making reciprocal satisfaction of the judgment in his favor standing in another court. This principle was recognized in Taylor v. Williams, supra, where substantially the same situation was presented as in the present case. The motion, therefore, should be granted, and the clerk directed to satisfy the judgment of this court in favor of the plaintiff upon production to him of a certificate from the clerk of the circuit court for Dane county that partial satisfaction of the judgment in favor of defendant and against the plaintiff in that court to the amount of the judgment in this court has been entered. By the Court.— So ordered.