Leavenson v. Lafontane

3 Kan. 523

• Court: Supreme Court of Kansas
• Decided: August 15, 1866
• Status: Published

Opinion

By the Court,

Crozier, O. J".

It is claimed by the plaintiffs in error that the District Court erred in sustaining the alleged lien of the attorneys of Lafontane as against their application to have the judgments set off against one another. They insist that upon the rendition of the latter judgment, the two judgments were to be deemed demands compensating one another within the meaning of section 108 of the Code, and hence there was nothing to which the lien at the time it was claimed, could attach.

The section referred to does not apply after the rendition of judgments upon the cross demands. It applies only in eases where the defendant sets up his cross demand before judgment is rendered against him. When the claims on each side are adjusted, the party establishing the larger is entitled to judgment for the excess. If the action is brought by an assignee, the defendant is not deprived of the right to counter-claim or set off his demand against the assignor, and although he may not be entitled to judgment against the assignee for the excess, yet he may prevent judgment against himself if his demand equals or exceeds that against him.

In the action against the plaintiffs in error, recited in the petition, it was competent for them to set up their judgment against the defendants in error as a cross demand, and have it there set off against any claim that might be established against them. Not having done this they resorted to a separate action to accomplish that object, and doubtless would have had a right to a judgment to that effect had not the lien of the attorneys attached before this latter proceeding was commenced. When they omitted to make their claim before judgment against themselves, they took the risk of whatever legal disposition should be made of that judgment.

The judgment of the District Court overruling the demurrers will be affirmed.

All the justices concurring.