Corwin v. Ward

35 Cal. 195

Opinion

By the Court, Sawyer, C. J.:

Ward might receive the money due on the judgment in favor of himself and several other co-plaintiffs. But he could not, without authority from his co-plaintiffs, set off a judgment due to them jointly, against another judgment held by the defendant in such joint judgment against himself -alone. Deceiving payment in money of the amount due on a judgment, is a very different thing from an executory agreement to set off' another judgment against it. One requires no special authority from the co-plaintiffs; the other does. In this case, no authority from his co-plaintiffs is shown in Ward, to set off the judgment in their favor jointly against the judgment against Ward alone. Besides, on the question of an agreement to set off one judgment against the other, the testimony was directly in conflict, and the Court found the facts, and, we are inclined to think, correctly, in favor of the plaintiff.

We see no constitutional objection to the Act which authorizes five per cent damages to be taxed as costs against the losing party in litigated cases in San Francisco. (Stats. 1858, p. 332, Sec. 7; Stats. 1866, p. 68, Sec. 6.) It operates equally and uniformly upon all parties in the same category—upon all upon whom it acts at all—that is to say, upon parties in the City and County of San Francisco, where the cause was litigated. It is constitutional according to the authorities cited by the appellant to sustain the opposite view. (Bourland v. Hildreth, 26 Cal. 256; French v. Teschemaker, 24 Cal. 544.)

Judgment affirmed, and remittitur directed to issue forthwith.