Kepner v. Pierce

5 Ohio C.C. 488

• Court: Ohio Circuit Courts
• Decided: April 15, 1891
• Status: Published

Opinion

Shattck, J.

With one exception, the cases cited in suppoi’t of the judgment below, are inapplicable. Some of them are cases in which, by suit or motion, it was sought to set off’ one judgment against another. This being but an equitable mode of satisfying judgments already recovered, courts have generally held that the pai’ties are entitled to exercise in such proceeding the same rights which they might exercise if satisfaction of the judgments wex-e sought by executions at law. It is upon this principle that judgments can not be so set off against each other, as to defeat the right of one judgment debtor to hold property exempt fx’om levy and sale upon execution.

Others are cases in which parties sued in trespass for seizing and selling property upon execution, in defiance of their debtor’s right and claim to an exemption, have been denied the right to set off the claims upon which they had seized the property. To permit the set-off in such cases would enable the judgment creditor to defeat the right to exemption which the statute in express terms confers upon the debtor. Temple v. Scott, 3 Minn. 306, may be of questionable authority, because it repudiates this principle.

So far as we are advised, Smith v. Sills, decided by the Supreme Court of Indiana, and reported in 25 N. E. Rep. 881, is the only support of the judgment before us. It was decided November 25, 1890, and as we have not access to the later decisions of that court, we assume that it has not been overruled. It was decided without reason, and upon a citation of authorities that do not apply because they fall within one or the other of the classes of cases already adverted to.

The set-off in the case before us was pleaded in strict accordance with the provisions of section 5070, of the Revised Statutes, and the seven following sections. If the defendant below had omitted to plead it, he could not have recovered costs in a subsequent action thereon. Witte v. Lockwood, 38 Ohio St. 144.

The exemption claimed by the plaintiff below, and allowed by the court, was not in accordance with the terms of section 5441 of the Revised Statutes. By its terms that section provides only for exemption from levy and sale. It confers a right upon judgment debtors in the cases contemplated, but in no wise affects the rights of parties litigant. The provisions relating to set-off and those relating to exemptions are not in pari materia. The former confer rights in action, the latter rights after judgment.

The court below permitted the plaintiff to recover from the defendant more than was due. The unsoundness of the rule upon which it proceeded becomes apparent if we suppose a case in which both parties are entitled to the exemption. In such case it would result in denying to both parties the right to perpetuate their claims by reducing them to judgment. That right is manifestly given to all persons, although, for the time being and in the cases provided for, the right to carry the judgment into execution is suspended.

Airead & Biekel, for plaintiff" in error. Batey' & Robeson, contra.

Certainly the statute relating to exemptions is to be liberally construed. But the liberal construction of one statute must not lead to the abrogation of another. The considerations urged in this regard are not judicial. At most they warrant no other conclusion than that the reasons which have led to legislation in favor of judgment debtors in certain cases, would justify legislation in favor of the same classes of persons before judgment. ■

Judgment reversed.